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HCAL 739/2024
[2024] HKCFI 1860
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 739 of 2024
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BETWEEN
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Nopitawati |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 5 April 2024 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicant did not request an oral hearing. I shall deal with her application on paper.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.
The applicant
4. The applicant, aged 41, is an Indonesian. She arrived in Hong Kong on 22 December 2022 to work as a foreign domestic helper. Her employment contract was prematurely terminated on 23 February 2023 and she overstayed since 10 March 2023. The applicant was arrested by the Immigration Department on 11 May 2023 for overstaying and she was sentenced to imprisonment of 15 months on 13 May 2023. The applicant made a non-refoulement claim on 30 May 2023. The claim was made on the basis that, if refouled, she would be harmed or killed by her creditor (“the creditor”) because she failed to repay her loan.
5. According to the applicant, she and her husband took out a loan from the creditor in around August 2021 to startup a business selling homemade snacks and beverages, using their house as a collateral. The applicant and her husband were able to repay the monthly instalment in full for the first five months. However, in around December 2021, their sales dropped significantly and they were only able to repay part of the monthly instalment. Since January 2022, the creditor came to the applicant’s house once a week to demand loan repayment. He also threatened to put the applicant and her husband into jail if they failed to repay the loan. Starting from May 2022, the creditor also chased for loan repayment via phone calls. To avoid the creditor, the applicant decided to come to Hong Kong for work. She received training at an employment agency from September 2022 for three months, during which the creditor would text or call her almost every day to chase for repayment. Meanwhile, the applicant also maintained contact with her husband, who told her that the creditor continued to visit her home 2-3 times per month.
6. The applicant arrived in Hong Kong on 22 December 2022 and she made repayment to the creditor in January 2023. However, the creditor requested extra payments because the repayment was severely behind schedule. The applicant also learnt from the creditor that her husband had disappeared. She subsequently learned that he had already left their village.
7. The applicant continued to receive WhatsApp calls from the creditor from February 2023 until she was detained on 10 May 2023. When she last contacted her mother on 23 June 2023, her mother told her that the creditor had begun chasing her family for repayment and threatening them.
8. The applicant was of the view that she could not seek protection from the police because they were corrupt and she could not afford bribing them. She also believed that the police would not help because the problem was private in nature. The applicant considered internal relocation not viable as well because she had no financial means and no one to rely on elsewhere in Indonesia.
9. Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 10 August 2023 (“the Director’s Decision”).
The Director’s Decision
10. 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”).
11. 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 from the creditor indicated that the risk of harm was not as imminent as claimed [13]-[14]; (ii) the matter is private in nature with no evidence of state involvement [15]; (iii) state protection would be available to her [17]-[21]; (iv) internal relocation would be viable [22]-[23] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [24]-[29], Persecution risk [30]-[34] or Torture risk [35]-[39].
The Board’s Decision
12. The applicant appealed the Director’s Decision to the Board. Although the Notice of Appeal was filed out of time, the Board decided to accept the late filing in view of the applicant’s detention [8]. On 25 March 2024, the Board conducted an oral hearing.
13. During the hearing, the applicant claimed that she still had contact with her husband up to May 2023 and she also varied her evidence as to how she found out her husband had left the village [29]-[30]. Furthermore, the applicant also gave contradicting evidence about the details of the loan [31].
14. The Board was not satisfied that the applicant’s claims were truthful because she gave inconsistent evidence regarding (i) the time of her husband’s disappearance and how she found it out [38] and (ii) details in relation to the loan [40]. In any event, taking the applicant’s evidence to the highest, there was no indication that the creditor intended to seriously harm or kill her and that the applicant could also consider internal relocation [41].
15. Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [43]-[61]. 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
16. The applicant has filed Form 86 dated 9 May 2024 for leave to apply for judicial review of the Board’s Decision.
17. In her affirmation in support of his application, the applicant did not raise any specific ground.
DISCUSSION
18. 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).
19. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
20. 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.”
21. For the reasons the Board has given above, the Board dismissed the applicant’s application. The applicant has not raised any valid ground to challenge the Board’s Decision.
22. The applicant fails to show that she has any realistic prospect of success in her intended judicial review of the Broad’s Decision.
CONCLUSION
23. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 16th day of July 2024.
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(Allen LEE)
for Registrar, High Court
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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
Notes for the Applicants:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 16/7/2024
Nopitawati
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 16/7/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 22119
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 644/23 (Formerly RBCZ 5000608/23)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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