NUR WIJAYANTI GIRIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2032/2019

[2024] HKCFI 2598

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2032 OF 2019

________________________

________________________

________________________

J U D G M E N T

________________________

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 6 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing.  However, she was absent at the hearing on 16 September 2014.  I shall deal with her application on paper.

The applicant

3.  The applicant, aged 39, is an Indonesian.  She last arrived in Hong Kong on 30 December 2012 to work as a foreign domestic helper (“FDH”).  On 20 July 2014, the applicant was intercepted by Immigration Officers for taking up unapproved employment and her employment contract was prematurely terminated on the same day.  On 22 July 2014, she was sentenced to imprisonment of four weeks for the said offence.  The applicant made a non-refoulement claim on 2 September 2014 and 8 December 2017.  The claim was made on the basis that, if refouled, she would be harmed or even killed by the creditor of her father (“the creditor”).

4.  According to the applicant, she started working in Hong Kong as a FDH in 2004.  In 2005, her father took out a loan from the creditor.  He began defaulting loan repayment in 2006, after which the creditor sent her underlings to vandalise the applicant’s maiden home and collect valuables there.  Subsequently, as the loan remain unsettled, the creditor’s underlings even assaulted the applicant’s father.  The applicant claimed that her father later died from the injuries he sustained from the assault.

5.  While in Hong Kong, the applicant maintained contact with her mother and was told that the threat from the creditor was still continuing.  The applicant and her family had never reported the matter to the police because they were threatened by the creditor not to do so.  In any event, the applicant believed that assistance would not be provided given that the police were corrupt.  The applicant also considered internal relocation not viable because she had no one to rely on elsewhere and she lacked the financial capability for relocation.

6.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 20 August 2018 (“the Director’s Decision”).

The Director’s Decision

7.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”)  (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”)  under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”)  (“Persecution risk”); and

d.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”)  (“Torture risk”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that (i)  the absence of past ill-treatment indicated that the creditor had no real intention to seriously harm or kill the applicant, so that she faced a small future risk of harm upon her return to Indonesia [17a], [17c]; (ii)  everything about the loan and the creditor were hearsay information [17b]; (iii)  there was no reliable evidence showing that the creditor was as powerful and influential as asserted [17d]; (iv)  the applicant’s delay in seeking non-refoulement protection indicated that the risk of harm was not as imminent as claimed [17e]; (v)  the claimed risk should have dissipated given the elapse of time [17f]; (vi)  state protection would be available [18]; (vii)  internal relocation would be viable [19] and (viii)  the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [21]-[26], Persecution risk [27]-[33] or Torture risk [34]-[36].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board.  The hearing was scheduled on 20 March 2019, for which the applicant failed to attend.  As the Board had not been made aware of any changes to the contact details of the applicant and the Notice of Hearing had not been returned undelivered, the Board was satisfied that the applicant had been duly notified about the hearing.  A notice sent to the applicant to explain her absence was returned marked “unclaimed return to sender” The Board was satisfied that the letter was sent to her last known address and service was deemed to have been effected.  The appeal was therefore determined in her absence [6]-[9].

10.  The Board accepted the applicant’s claim that her father had taken out a loan from the creditor and that her family received threats thereafter because the loan remain unsettled [40].  However, the Board found no reliable evidence suggesting that the applicant would (i)  face antagonism from the creditor given the elapse of time; (ii)  be located by the creditor outside her locality; (iii)  suffer physical harm given the past behaviour of the creditor and (iv)  be denied state protection [41].

11.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [43]-[53], [63]-[81], [88]-[91].  Furthermore, the country of origin information also indicated the availability of state protection [54]-[60], [62] and internal relocation [82]-[87].

12.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

13.  The applicant has filed Form 86 dated 17 July 2019 for leave to apply for judicial review of the Board’s Decision.

14.  The applicant has attached the grounds to Form 86 as summarized below.

(1)  The Board was in breach of procedural fairness as it had fettered its discretion by refusing her application; it acted in an unfair manner; its decision is unfair and irrational in the public law sense; and it failed to meet the greater care and duty to her, an unrepresented claimant.

(2)  She was not given the opportunity to submit written submissions.

(3)  The Board had relied on the source of news which is not officially recognized or it is simply hearsay.  It also relied on outdated cases, resulting in its speculation that it is safe for her to return to her country.

DISCUSSION

15.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal.  The Court will not usurp the fact-finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

17.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1)  … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

18.  For the reasons given by the Board, the Board rejected her evidence that she will have real risk of harm from her creditor if she returns to Indonesia.

19.  The grounds given by the applicant under paragraph 14 do not assist her application.  Grounds (1)  and (3)  are her bare assertions without any evidence in support.  Ground (2)  does not sustain as she did not attend the hearing and the Board has no statutory duty to advise her of making written submissions.  In fact, the applicant has not explained why she did not receive the Board’s notice or why she was absent at the hearing.

20.  The applicant has raised no valid ground to challenge the Board’s Decision.

21.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

22.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.