Case Document

100%Judiciary

HCAL 2739/2018

[2021] HKCFI 1660

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2739 of 2018

BETWEEN

	Sih Makartiningtyas	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

consideration of documents only; or

consideration of documents and Applicant being absent in open court;

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 25 October 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. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

3.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.

The applicant

4.The applicant is an Indonesian national. She came to Hong Kong on 24 August 2012 as a domestic helper. Her employment contract was prematurely terminated. She overstayed and surrendered to the Immigration Department on 7 July 2015. She lodged her non-refoulement claim with the Immigration Department by written submission dated 17 May 2016.

5.The applicant claimed that, if refouled, she would be harmed or killed by her ex-husband because she refused to transfer the premises, which was under her father’s name, to him. Her ex-husband did not accept this explanation and assaulted her. She left the house and came to Hong Kong to work as a domestic helper. Her ex-husband continued to press her for the premises. She had divorced him. However, he kept on making the demand and threatened to kill her on the phone if she did not transfer the premises to him. Details of her story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decision

6.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. 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 26 February 2018 (“the Director’s Decision”), the Director refused her claim for the reason that the level of risk of being harmed or killed by her ex-husband if she returned to Indonesia was assessed to be low [10]; that state protection would be available to her [15] and that internal relocation was an option open to her [17].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. She appeared before the adjudicator of the Board on 7 June 2018.

9.The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision. From the Board’s Decision, it seems that the Board accepted the facts as the applicant alleged. On that basis, it assessed the applicant’s merits within the context of the statutory provisions and the Convention in relation to those risks set out under paragraph 6 above. Having considered the relevant facts and by application of the law to the facts, the Board came to the following conclusions:

(1) the BOR 2 risk fails as her risk came from her ex-husband and not from the state [18];

(2) the BOR 3 risk fails as the applicant’s ex-husband’s demand and threat are unlikely to be real and she failed to show a genuine and substantial risk of being subjected to ill-treatment should she be returned to Indonesia [27];

(3) the Torture risk fails as the applicant failed to discharge the burden of proving the risk of torture and substantial grounds for believing that she would be in danger of being subjected to torture if returned to Indonesia [33];

(4) her case, being one of domestic abuse or violence, falls outside the ambit of the Refugees Convention, thus her Persecution risk fails [44];

(5) state protection is available to her in Indonesia [64]; and

(6) internal relocation is reasonable and open to her in Indonesia [68].

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

10.The applicant filed Form 86 dated 3 December 2018 for leave to apply for judicial review of the Board’s Decision.

11.In her affidavit in support of her application, the applicant repeated her assertions that her ex-husband would harm or kill her and it would be dangerous for her to return to Indonesia.

DISCUSSION

12.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13.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.”

14.The grounds in support of her application do not assist her in this application. They had already been considered by the Board and the Board had made its findings.

15.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.

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

CONCLUSION

17.I refuse to grant the applicant leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 28^th day of June 2021

	(K.H. LI)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 28/06/2021 Sih Makartiningtyas Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 28/06/2021 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 10647/18/3/99/I1145 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 330/18 (Formerly RBCZ 11895/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)