Anik Purwa v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 2952/2018

[2020] HKCFI 1201

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2952 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 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 13 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. The Court will 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 was amended by deleting the Board and replacing it with the Director of Immigration (“the Director”) as interesting party.

The applicant

4.The applicant is an Indonesian national. She came to Hong Kong and worked as a domestic helper in 2014. Her working visa expired on 21 June 2014 and she was arrested for theft. She was convicted of the offence and sentenced to two months’ imprisonment. She lodged her non-refoulement claim after discharge from prison.

5.The applicant claimed that, if refouled, she would be harmed or killed by her ex‑husband because she had divorced him. She had divorced him because he drank and womanized. He had also abused her by beating her and throwing at her objects such as knife, glass cup or plate, causing injuries to her body. She had depression. Finally, she came to Hong Kong to work as domestic helper. Her ex-husband called her and threatened her that he would kill her if she returned to Indonesia.

The Director’s Decision

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

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

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

c.  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

d.  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”).

7.By Notice of Decision dated 13 March 2018 (“the Director’s Decision”), the Director refused her claim for the reason that there were no substantial grounds for believing that she would be killed by her ex-husband if she returned to Indonesia [12]; that state protection was available to her [15] and that internal relocation was an option open to her [25]. Also, she was unable to establish BOR 2 risk.

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision and attended the hearing on 13 November 2018.

9.By the Board’s Decision, the Board rejected her appeal and confirmed the Director’s Decision.

10.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusion that even if her evidence was accepted, her case was not one under the protection of non-refoulement [32]. Also, state protection would be available to her [46].

11.On the basis of the evidence, the Board did not accept that she would be subjected to any of the risks above.

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 24 December 2018 for leave to apply for judicial review of the Board’s Decision.

13.In her affirmations in support of her application, she did not set out any ground in support of her application. Nor did she say that the Board was in error in coming to its decision.

DISCUSSION

14.As the Board did not accept that she was under any real risk if she returned to Indonesia, her claim will fail.

15.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.”

16.There is nothing to show that the Board had committed any error in its application of the law to her case.

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

CONCLUSION

18.Since the applicant’s application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to grant her leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 16^th day of June 2020

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