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

HCAL 1147/2021

[2021] HKCFI 2949

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1147 of 2021

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 present 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 9 August 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing has therefore been fixed for her.

The applicant

3.The applicant is a citizen of Indonesia.  She came to Hong Kong on 24 August 2019 as a domestic helper.  Her employment contract was terminated prematurely.  She overstayed and surrendered to the Immigration Department.  She lodged

4.The applicant claimed that, if refouled, she would be harmed by her father who is a gambler.  He has lost a lot of money in gambling.  He borrowed money from a moneylender of his similar age.  He planned to marry her off to the moneylender for repayment of his debt in lieu.  Whilst working in Hong Kong, she had romantic relationship with another Indonesian maid.  Her father knew about it and was very angry.  He threatened that he would kill her if she returned to Indonesia.  Details of her story are set out in paragraph 7 of the Director’s Decision described below.

The Director’s Decision

5.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”).

6.By Notice of Decision dated 29 April 2021 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated.  The Director found that there was no ground for believing that she would be harmed or killed by her father if she returned to Indonesia [11]; that state protection would be available to her [17] and that internal relocation was an option open to her [18].

The Board’s Decision

7.The applicant appealed to the Board against the Director’s Decision and she had appeared before the adjudicator of the Board.

8.The Board, having conducted a protracted cross-examination of the applicant’s evidence [39-70], accepted her evidence on her sexual orientation [74] and that there might be some risk that she might be exposed to some form of retaliatory acts [81].  However, the Board found that the said risk was purely localized, which could be avoided by relocating to a larger city such as Jakarta or Bali [82].  The Board was not persuaded that she would face undue hardship in internal relocation and that there was not a real risk that she would face any of the proscribed forms of harm should she return to Indonesia [96].

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

9.The applicant has filed Form 86 dated 13 August 2021 to apply for leave to apply for judicial review of the Board’s Decision.

10.In her affirmation in support of her application, the applicant enclosed the Board’s Decision without specifying any ground for her application.

DISCUSSION

11.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal.  The Court will not usurp the fact finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

12.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant said that she had had a fair hearing before the Board and she had nothing to say.

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 Board has conducted a rather comprehensive assessment of the applicant’s evidence and has given its reasons for its findings.  There is no valid reason from the applicant to challenge its Decision.

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

Dated the 18^th day of October 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