ROFI’ATUL MAKIAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3570/2019

[2021] HKCFI 1086

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 3570 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 oral submissions by the Applicant in open court.

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

2.  The applicant applies for leave to apply for judicial review of the Decision dated 29 November 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s 2^nd Decision”).  This application was suspected to be a duplication of application because the applicant in this case bears the same name with the applicant in HCAL166 of 2015, which had been dealt with by the Court in relation to the Board’s 1^st Decision dated 27 July 2015 (“the Board’s 1^st Decision”).  In the Board’s 1^st Decision, the Board dealt with the applicant’s claim on the Torture risk, the BOR 3 risk and the Persecution risk.  The Board affirmed the Director’s decision and dismissed her appeal.  The Court had, by its Judgment handed down on 3 March 2016 (“the Judgment”), dismissed her application.

3.  The file of HCAL 166 of 2015 was retrieved from the warehouse for verification.  If the present application is a duplicate application, it should be dismissed for abuse of process.  See Re: Fabio Arlyn Timogan & Ors. v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office & Anor [2020] HKCA 971, 27 November 2020, §28. It is now discovered that this application is for leave to apply for judicial review of the Board’s 2^nd Decision, which is on the BOR 2 risk only. This application is therefore consolidated with HCAL 166 of 2015.  The Court will take into consideration of the facts found in HCAL 166 of 2015 in this application.

4.  The applicant did not request an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

The applicant

5.  The applicant is an Indonesian national.  She came to Hong Kong as a domestic helper.  She was arrested for theft on 24 October 2013.  On the same day, her employment contract was terminated.  She was sentenced to one month’s imprisonment. After discharge, she lodged her non-refoulement claim with the Immigration Department.

6.  The applicant claimed that, if refouled, she would be harmed or killed by her creditor because she was unable to pay off her debt.  She borrowed money from a Hong Kong loan company to buy a paddy-grinding, or rice mill business with some of her distant relatives in Indonesia.  She discovered that she had been cheated.  She was unable to repay her debt.  The Hong Kong creditor chased her for repayment.  She returned to Indonesia.  The Hong Kong creditor got assistance from its agent in Indonesia to chase for the debt.  She was threatened that if she was unable to repay the money, her daughter in Indonesia would be kidnapped and she had to be a prostitute herself to raise the money.  A couple in Indonesia helped her out by paying the Hong Kong creditor and they took the place of that Hong Kong creditor.  However, she was unable to repay the debt to the Indonesian couple, who threatened to seize her property.  She was afraid and came to work in Hong Kong.

The Director’s Decision

7.  The Director considered her application in relation to the following risks:

a.     risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture 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”); and

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”).

8.  By Notice of Decision dated 6 January 2015 (“the Director’s 1^st Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found that the level of risk of being harmed or killed if she returned to Vietnam was low [12]; that state protection would be available to her [14] and that internal relocation was an option open to her [15].  Based upon the finding of the facts, the Director rejected her claim on all the risks above.

9.  By Notice of Further Decision dated 29 May 2017 (“the Director’s 2^nd Decision”), the Director rejected her claim on BOR 2 risk because she failed to establish, by evidence, a personal and real risk of being deprived of her life in violation of BOR 2 upon her return. [9]

The Board’s 1^st Decision

10.  The applicant appealed to the Board against the Director’s 1^st Decision.

11.  The Board, having considered her evidence, rejected her appeal and affirmed the Director’s 1^st Decision for the reasons as set out below.

(1)   Her evidence was accepted.

(2)   According to her evidence, both the Hong Kong debt collector and the Indonesian couple did not harm her or her daughter. [40-44]

(3)   The Board concluded that the applicant was unable to show that, if refouled, she would face a real chance of harm sufficiently serious to amount to torture at the hands of either of the debt collectors or that any of the state agents were involved in the debt collection. [56]

Application for leave to apply for judicial review of the Board’s 1^st Decision

12.  The applicant filed Form 86 on 17 August 2015 for leave to apply for judicial review of the Board’s 1st Decision.  The Court, having considered her case, found that the decisions of the Director and the Board were reasonable, rational and sound; that the applicant failed to demonstrate that any of her intended grounds of review was reasonably arguable and therefore it, by the Judgement, dismissed her application.

The Board’s 2^nd Decision

13.  The applicant appealed to the Board against the Director’s 2^nd Decision.

14.  The Board had taken into consideration the facts above and found that there was no new fact in support of her application.  It found that the applicant was unable to make out her claim on BOR 2 risk. By the Board’s 2^nd Decision, it dismissed her appeal and affirmed the Director’s 2^nd Decision.

Application for leave to apply for leave to apply for judicial review of the Board’s 2^nd Decision

15.  The applicant now applies for leave to apply for judicial review of the Board’s 2^nd Decision, which is on the BOR 2 risk. She has to rely upon the same set of facts above.

DISCUSSION

16.  The Court will bear in mind that the Board’s Decision 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.  The Board had found that she was not having real chance of harm sufficiently serious to amount to torture at the hands of either of the debt collectors or that any of the state agents were involved in the debt collection, which is the fact found by the Board and it had given sufficient reasons for its findings.

19.  The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

20.  The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

21.  I refuse her application for leave to apply for judicial review of the Board’s 2^nd Decision.  Accordingly, I dismiss her application.

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