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

HCAL 2786/2018

[2021] HKCFI 2197

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2786 of 2018

BETWEEN

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 and her son were the applicants before the immigration officer and the adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”).  The son applicant’s case relied upon the mother applicant’s facts.  However, this is the mother applicant’s application only.

2.The applicant applies for leave to apply for judicial review of the Decision dated 29 November 2018 of the Board (“the Board’s Decision”), which is a Decision on BOR 2 risk.  In determining the BOR 2 risk, the Board had to rely on the facts in its Decision dated 27 January 2017 on the Torture risk, the BOR 3 risk and the Persecution risk.  I shall therefore take into account of the Decision dated 27 January 2017 as well for this application.

3.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.

4.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

5.The applicant is an Indonesian national.  She came to Hong Kong as a domestic helper on 22 May 2011.  She finished her contract and overstayed.  On 28 June 2014, she was arrested by police.  She raised non-refoulement claim by written representation of 4 September 2014.

6.The applicant claimed that, if refouled, she would be punished by her parents by beating because she had given birth to her son out of wedlock and that her son would be regarded as a forbidden child.  Her family and the whole local community in Indonesia were strict Muslims.  The Muslim custom forbids a woman to give birth to a child out of wedlock.  Details of her story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decisions

7.The Director considered her and her son’s 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”).

8.By Notice of Decision and Notice of Further Decision respectively dated 30 July 2015 and 18 April 2017 (“the Director’s Decisions”), the Director refused her claim for the reason that it was not substantiated.  The Director found that the level of risk of her and her son being harmed if they returned to Indonesia was assessed to be low [16]; that state protection would be available to her and her son [18]; that internal relocation was an option open to her [26] and that the applicant and her son were unable to show, by evidence, that their right to life under BOR 2 would be violated if they returned to Indonesia.

The Board’s Decisions

9.The applicant and her son appealed to the Board against the Director’s Decisions.  They appeared before the adjudicator of the Board on 29 June 2016 in relation to the Director’s Decision on Torture risk, BOR 3 risk and Persecution risk.  The Board decided not to have an oral hearing on the appeal on BOR 2 risk.

10.The Board, having considered her evidence, rejected their appeal and affirmed the Director’s Decisions for the reasons that it did not accept that her family members or her local villagers were interested to locate her and her son all over Indonesia; that there was any substantial risk or any substantial basis of fear and internal relocation was an option open to her. [18]  The Board also found that state protection was available to her and her son. [23]  The Board also found that she and her son were unable to establish a case on BOR 2 risk, right to life violation if they returned to Indonesia.

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

11.The applicant has filed Form 86 dated 6 December 2018 to apply for leave to apply for judicial review of the Board’s Decisions.

12.In her affirmation in support of her application, the applicant simply annexed the Board’s Decisions and the Director’s Further Decision.

DISCUSSION

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

14.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.”

15.The Court does not find any error of law or procedural unfairness in the Board’s Decisions.  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 leave to the applicant to apply for judicial review of the Board’s Decisions.  Accordingly, I dismiss her application.

Dated the 5^th day of August 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