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

HCAL 222/2019

[2021] HKCFI 471

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 222 OF 2019

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 the Applicant being present/ absent 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 decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1979, is a national of Indonesia.  She first arrived in Hong Kong in April 2012 as a foreign domestic helper.  She then remained in Hong Kong either for employment or as a visitor until her last employment contract was terminated on 6 February 2015.  Since 21 February 2015, she overstayed and remained in Hong Kong unlawfully.  On 29 October 2015, she surrendered herself to the Immigration Department.  She was convicted of overstaying and sentenced to two weeks’ imprisonment.  On 22 November 2016, she lodged a non-refoulement claim.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [15] 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 ex-husband.  She claimed that during the marriage, she had constant arguments with her husband over financial matters.  In 2012, her husband slapped her who then asked for a divorce.  He threatened to kill her if she divorced him and she ran away to her parents’ home.  She then decided to leave and come to Hong Kong for work on 16 April 2012.  She filed for divorce in Hong Kong in 2013 and the divorce has been finalised.  She is now in a relationship with a Pakistani national in Hong Kong.

The Director’s decision

4.By a notice of decision dated 10 November 2017, 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 and found state protection as well as internal relocation as a reasonable option available to the applicant.  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 21 November 2018.

6.By a decision dated 21 January 2019, 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 para [68-91] of its decision.  In a nutshell, the reasons can be summarized as follows:

(1)  the applicant’s account of primary facts about her dispute with her ex-husband over financial matters were accepted and he might have slapped her and threatened to kill her if she divorced him [72-74];

(2)  however, she had no face to face contact with her ex-husband since 2011 and neither herself nor her family members had been threatened or harmed since the divorce was finalized, the applicant would not face real risk of being subjected to harm or ill-treatment [76-78];

(3)  in any event, internal relocation is a viable option for her [83].

8.Having considered all the circumstances relied on by the applicant, the Board found that the applicant failed on all applicable grounds and confirmed the decision of the Director.

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 23 January 2019 for leave to apply for judicial review of the decision of the Board.

10.In the Form 86, the applicant did not set out any grounds for the relief sought but only stated “unhappy”.  In the affirmation in support, so far as it could be understood and relevant to her case, she said she is unhappy about the decision of the Board because she still has much problem in her family.  She said “no state party shall return or extradite a person to another state where there are substantial ground for believe that I would be in danger of being subjected to torture.” (sic)

11.By a letter dated 22 July 2020, the court invited the applicant to submit information including any submissions that she would like to make.  In reply, the applicant sent a letter dated 13 August 2020 to the court.  So far as it can be understood, she says she still has much problem in her family; she has problem with the Indonesian police and government authorities; she constantly quarrelled with Supardi (her ex-husband) who threatened to kill her if she divorced him.  No request for oral hearing has been made.  The application is therefore considered on the papers.

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 nevertheless 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.  Thisdecision will focus on the Board’s decision.

14.In the present case, the Board gave her account of primary facts and events a favourable consideration. The Board did not take issue with the applicant’s asserted primary facts.  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 viability of internal relocation for her.

15.As explained above, the assessments of evidence, risk of harm, reasonable 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 complaints raised by the applicant in her Form 86 and affirmation are general and bare assertions, without particulars to demonstrate why the Board was unfair or unreasonable in the public law sense.  She was essentially repeating her claim and asking this court to reconsider her claim afresh.  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.The Board has taken a view on credibility most favourable to the applicant.  Indeed, her delay in making the claim for protection (8 months since she overstayed) could have been viewed adversely on her credibility and was inconsistent with someone in genuine fear for her life and safety.

18.Further, even if one gives her account the most favourable interpretation, the alleged past ill-treatment was of low intensity and frequency demonstrating only an unreal risk of future harm.

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

20.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 decisions of the Director and the Board which are wholly reasonable.

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.

Disposition

23.For the reasons given, there is no reasonable prospect of success in the applicant’s intended application.  Accordingly, I refuse to grant leave to apply for judicial review.

Dated 4 March 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