Ika Fitriana v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2286/2018

[2021] HKCFI 214

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2286 OF 2018

BETWEEN

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 submission by the Applicant in open court.

Order by Deputy High Court Judge C P Pang:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decisions of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”). The Director refused the applicant’s claim of non-refoulement protection. The Board dismissed the appeal against the decision of the Director, confirming his decision.

2.The applicant, born in 1988, is a national of Indonesia.  She arrived in Hong Kong on 3 June 2013 to work as a domestic helper.  Her employment contract was terminated in February 2014 and she overstayed since 18 February 2014 and remained in Hong Kong unlawfully.  On 21 April 2015, she was arrested by the police and subsequently convicted and sentenced for breach of condition of stay.  On 6 May 2015 she lodged a non-refoulement claim.  She was subsequently released on recognizance.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [5] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by her husband.  She claimed that her husband had an affair with other women.  Her husband inflicted violence on her by slapping and pushing her between January and May 2013.  In June 2013, she came to Hong Kong to work as a domestic helper.  She has had a boyfriend in Hong Kong since January 2014.  Her husband learned about it. He called her and said he would kill her and her mother if she returned to Indonesia.  He called her every day to threaten her until she changed her phone number.

The Director’s decision

4.By a notice of decision dated 21 March 2018, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  Having taken into account all relevant circumstances, the Director assessed the level of risk of harm as low.  He further found that state protection is available to the applicant and internal relocation is a viable option for him, which further lower the level of risk. The decision covered torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

5.The applicant attended a hearing before the Board on 7 September 2018.

6.By a decision dated 15 October 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

7.The Board gave detailed reasons for rejecting the applicant’s claim at paragraphs [35-61] of its decision.  In a nutshell, the reasons can be summarized as follows:

(1)  the applicant’s account of primary facts was accepted by the Board [35];

(2)  however, despite the threats, her husband continued to reside with her mother, father, child and younger brothers, indicating her husband does not pose a real genuine threat [36];

(3)  the applicant would not face real chance or real risk or a reasonable degree of likelihood that she would be found or harmed by her husband [48];

(4)  state protection is available to her and internal relocation is a viable option for the applicant [37, 40].

8.Having considered all the evidence relied on by the applicant, the Board found that the applicant’s life is not at risk.  Accordingly, the Board dismissed the applicant’s appeal on all applicable grounds.

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 22 October 2018 for leave to apply for judicial review of the decision of the Board.

10.No request for oral hearing has been made.  The application is therefore considered on the papers.

11.In the Form 86 and supporting affirmation, the applicant did not set out any proper grounds for the relief sought.

Discussion

12.The relevantprinciples regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence, country of origin information, 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, procedural unfairness or irrationality in the decision of the Board.

13.When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This decision will only focus on discussing the Board’s decision.

14.In the present case, the Board gave her account of primary facts and events the most favourable interpretation.  The Board did not take issue with the applicant’s asserted primary facts and events.  It however disagreed with the applicant on the assessment of risk flowing from such events.  Taking into account all the relevant circumstances, it rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on the availability of state protection and viability of internal relocation.

15.As explained above, the assessments of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so.

16.The applicant stated no grounds of the judicial review in Form 86.  She mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense.  Nor was there a challenge with regard to procedural regularity and fairness.  In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

17.Indeed, the applicant’s conduct in Hong Kong by her delay in lodging the claim for protection was inconsistent with someone in genuine fear for her life and safety.  It could be taken into account as damaging the applicant’s credibility.

18.Further, even if one givesher account the most favourable interpretation, the alleged past ill-treatment or experience were of low intensity and frequency demonstrating no real risk of future harm.  There is no valid reason why she did not seek protection from the police and other authorities and why she cannot relocate to other parts of her country, if refouled.

19.The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

20.Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria.  They gave the applicant a reasonable opportunity to state her case and enquired into the issues appropriately.

21.There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

22.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in their decisions.  Nor do I see any failure on their part to apply high standards of fairness.

23.For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.

Disposition

24.Accordingly, leave to apply for judicial review is refused.

Dated 2 February 2021

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