Wartini and Another v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1703/2018

[2019] HKCFI 2138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1703 OF 2018

BETWEEN

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 Woodcock:

Leave to apply for judicial review be refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is a national of Indonesia who last arrived in Hong Kong as a foreign domestic helper on 13 September 2011.  Her contract was terminated early and she did not depart Hong Kong as required but overstayed from 14 September 2012.  She was arrested on 12 November 2012 for the immigration offence of overstaying.  She first made a non‑refoulement protection claim dated 14 December 2012 and added her son later; her son was born in Hong Kong on 9 February 2013.  

2.Their non‑refoulement protection claim was dismissed by the Director of Immigration (“the Director”) on 26 January 2017.  She filed a petition/appeal to the Torture Claims Appeal Board (“TCAB”) on 3 February 2017.  There was a hearing date on 30 May 2018 and subsequently their appeal/petition was dismissed on 19 July 2018.  The applicant filed a notice of application for leave to apply for judicial review on 21 August 2018.  She did not request an oral hearing therefore, I intend to consider this application on the papers.

3.The basis of her claim is that if she were to return to Indonesia, she and her son will be harmed or killed by her own parents because she had her son out of wedlock whilst she was working in Hong Kong as a domestic helper.  She met a Pakistani man and formed a relationship.  She fell pregnant in mid‑2012 which led to the early termination of her employment contract.  That Pakistani man went home to Pakistan.  She told her parents in Indonesia over the phone about her pregnancy but her father disowned her, would not accept her or her unborn baby, telling her not to return home.  She has said that since that first conversation, her father has refused to talk to her and threatened to kill her and the baby if they ever returned home.

4.The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

a.     risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

b.     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

c.     risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

d.     risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

5.The adjudicator treated the appeal as a rehearing.  She correctly set out the law and key legal principles for the four applicable grounds.  She set out the applicant’s evidence in detail as well as her consideration and analysis of it.  She also considered her son as an applicant.

6.The adjudicator concluded that her evidence was plausible and that it was unsurprising that the applicant’s father would accuse her of bringing shame upon the family as a result of having a child out of wedlock.  The adjudicator accepted that she may not be able to return to the family home and that her father may hit her.  She found the applicant had exaggerated her claims that her and her son would be killed.

7.Sad as her situation is, the adjudicator concluded that there was no real risk to the applicant or her son from her own brother on her own evidence if she returned to Indonesia.  On her own facts, the adjudicator found that they had failed to establish they would face a real risk of persecution, a real risk of torture or CIDTP under Article 3 of HKBORO, a real risk of being deprived of her right to life under Article 2 of HKBORO and a real risk of torture as defined in section 37U(1) of the Immigration Ordinance if they were refouled to Indonesia.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

8.The applicant has sought leave to judicial review the decision of the TCAB.  She has only named herself as the applicant but I take it that she was applying for leave to apply for judicial review on behalf of her son as well.

9.However, there are no grounds set out in her affirmation.  I have nonetheless considered the adjudicator’s decision with rigorous examination and anxious scrutiny as required.  I find the adjudicator’s decision to be without fault.  She has carefully considered the applicant’s evidence and given full reasons for her finding that the applicant is not able to succeed in her non‑refoulement protection claim. I will not interfere with her decision.  I do not see any error of law made by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable. My findings also apply to the adjudicator’s decision regarding the 2^nd applicant, her son.

10.In my judgement, the applicant’s claim for herself and her son is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse both the applicant and her son leave to apply for judicial review.

Dated the 27^th day of September 2019

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