Case Document

100%Judiciary

HCAL 2835/2018

[2021] HKCFI 2806

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2835 of 2018

BETWEEN

	Wati	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 22 November 2018 [4 October 2018, an error in Form 86] 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 13 February 2014 as a domestic helper. Her employment contract was terminated prematurely. She overstayed and was arrested by police and charged accordingly. She was sentenced to 2 weeks’ imprisonment suspended for 3 years. She lodged non-refoulement claim with the Immigration Department on 22 October 2014.

5.The applicant claimed that, if refouled, she would be harmed or killed by her husband who was an abuser of domestic violence because of her extramarital affairs and her failure to pay the debt borrowed by him. Her husband had extramarital affairs in Malaysia and her extramarital affairs were in Indonesia. Her husband assaulted her after learning about that. Details of her story are set out in paragraph 7 of the Director’s Decision described below.

The Director’s Decision

6.The Director considered his 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 23 November 2017 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found that the level of risk of her being harmed or killed by her husband if she returned to Indonesia was assessed to be low [13]; that state protection would be available to her [19] and that internal relocation was an option open to her [23].

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 4 October 2018.

9.The Board, having considered her evidence, dismissed her appeal and affirmed the Director’s Decision. The adjudicator had extensive cross-examination and consideration of her evidence and found that part of her evidence was acceptable, but some was not. There were inconsistencies in her accounts given to the immigration officer and to the Board. [55] The Board did not find the account of her husband’s violence credible. [59] The Board concluded that there was no real risk that she would be killed or otherwise harmed by her husband if she returned to Indonesia. [62] Internal relocation was also found to be an option open to her [69].

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

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

11.In her affirmation in support of her application, the applicant simply said that she would be harmed or killed by her husband if she returned 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.Her reasons in support of her application do not assist her.

15.The Court does not find any error of law or procedural unfairness in the Board’s Decision. 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 realistic 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 Decision. Accordingly, I dismiss her application.

Dated the 5^th day of October 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 05/10/2021 Wati 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 05/10/2021 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 9427/17/12/94/I927 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2901/17 (Formerly RBCZ/3001367/14) (T8S21) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)