KURNIA FADILAH UTAMI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2275/2019

[2024] HKCFI 3546

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2275 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and the Applicant being absent in open court;

1.  The Form 86 is amended on the court’s own motion.

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 8 August 2019, the applicant applied for leave to apply for judicial review (“Leave Application”) of the decision of the Torture Claims Appeal Board (“the Board”) dated 12 July 2019 (“Board’s Decision”). The Board had dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 10 April 2018 (“Director’s Decision”) who refused the applicant’s claim for non-refoulement protection.

2.  In Form 86, the applicant named the “Torture Claims Director of Immigration” as the proposed respondent and just listed the date “21 March 2019” under the judgment in respect of which relief is sought. As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, and the correct date of the Board’s Decision annexed to the applicant’s affirmation should have been 12 July 2019, Form 86 will be amended accordingly on the court’s own motion.

3.  As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 26 November 2024. A notice of hearing with a reminder[1] of the consequence of absence dated 11 November 2024 was sent to the applicant’s last known address by ordinary post. The applicant did not turn up at the hearing. A telephone call was made to the applicant’s given telephone number, but to no avail. The information before this court shows that the said notice of hearing has not been returned through the post.

4.  In the circumstances, this court will dispose of the Leave Application in according to the materials already placed before the court.

Background

5.  The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.

6.  The applicant came from Indonesia. She entered Hong Kong in May 2014 as a foreign domestic helper. After her employment contract was terminated, she would have to leave Hong Kong on 25 August 2015. She did not leave but instead overstayed. By written significations dated 14 and 29 July and 2, 6, 13 August 2017, the applicant lodged her non-refoulement claim covering all applicable grounds – risk of torture[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5] under the USM.[6] The claim was based on her fear of being harmed or killed by (i) the loan shark for a subsisting outstanding loan in the sum of 200 million Indonesian Rupiah; and (ii) her husband after the applicant had failed to remit money to him and the discovery by the husband of her affair with another man.

7.  The Director decided against the applicant’s claim on all applicable grounds. The Director found that there were no substantial grounds in believing that the applicant’s asserted risk of being harmed or killed by the loan shark and her husband. It was found that the risk of harm was low. It was also found that state protection as well as internal relocation alternatives were reasonably available. Hence, the appeal to the Board.

8.  On 24 April 2019, the applicant attended a hearing before the Board. At the hearing, the applicant informed the adjudicator for the Board that the reason for her fear of returning to Indonesia because of the risk of being killed by the loan shark and her husband. After having received the oral evidence at the hearing, the adjudicator found that there was no genuine threat having been made to the applicant from either her husband or the loan shark or anyone else in the way as she claimed. The adjudicator found that the account of threats from the loan shark defied commonsense. It was concluded that neither the loan shark nor the husband had any genuine intent to carry out the threats or to kill the applicant. The Board had also taken into account the fact that the applicant did nothing to seek protection against her return to Indonesia until her arrest and detention in July 2017, which was nearly two years after her permission to stay in Hong Kong had expired. The Board further found that the debt owed to the loan shark was purely a personal matter. There was no suggestion that the threats by the loan shark and the husband had any state or government involvement. The Board also found that both state protection as well as internal relocation options were reasonably available. The Board concluded that the applicant had not made out a case for non-refoulement.

Legal principles applicable to judicial review

9.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

10.  The applicant’s Form 86 did not contain any grounds for seeking relief. In her supporting affirmation of the same date, she exhibited a copy of the Board’s Decision and deposed that this would give the court a “more complete picture”. There were no evidence or identification of errors in support of the intended challenge.

11.  The Board’s Decision was arrived at with the benefit of a hearing in which the applicant was able to clarify matters raised by the Board. After examining the applicant’s evidence in detail, the Board found that the applicant’s conduct was inconsistent with someone who needed non-refoulement protection due to her over two-year delay and made the claim only when the police arrested her. The Board’s conclusion that the applicant’s asserted risks from either the loan shark or the husband were not substantiated was based on the adjudicator’s evaluation of the evidence. The findings on state protection and internal allocation were arrived at with reference to the relevant country of origin information. These are findings of fact, which the court in a judicial review will not interfere with.

12.  Having rigorously examined the Director’s Decision and the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness or irrationality in the Board’s Decision. The Board had properly examined the applicant’s issue with commonsense and high standard of fairness: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Orders

14.  The Form 86 is amended on the court’s own motion.

15.  The Leave Application be dismissed.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1