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

HCAL 2831/2018

[2021] HKCFI 3445

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2831 of 2018

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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.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court (“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.

2.The applicant applies for leave to apply for judicial review of the Decision dated 19 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

3.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the RHC, her application will be dealt with on paper.

The applicant

4.The applicant is a citizen of Indonesia. She came to Hong Kong on 28 March 2014 as a domestic helper.  Upon the completion of her employment contract, she did not leave and overstayed since 29 March 2016.  On 15 March 2017, she was arrested by the Immigration Department.  She lodged a non-refoulement claim by way of written representations dated 21 March 2017, 26 March 2017 and 5 April 2017 respectively.

5.The applicant claimed that, if refouled, she would be harmed or killed by her mother due to her disobedience to marry a Dayak man and also by her ex-husband Arif for her refusal to give him money.  The applicant married Arif in 2011.  In their marriage, Arif was abusive and often committed domestic violence.  In 2012, Arif went to Taiwan for work.  Two years later, they got divorced.  Her mother forced her to remarry but she refused.  Later, she was demanded by her mother’s bank, asking for repayment of her mother’s loan, and was threatened by her mother for not remarrying as well as by her ex-husband for not giving him money.  Out of fear, she fled to Hong Kong for protection. Details of her story are set out in paragraph 6 of the Director’s Decision described below and paragraphs 31-48 of the Board’s Decision.

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 28 February 2018 (“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 mother or ex-husband if she returned to Indonesia [13]-[16]; that state protection would be available to her [17] and that internal relocation was an option open to her [18].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision.  On 17 August 2018, she appeared before the Board and answered inquiries with the assistance of an interpreter.  She confirmed that she had no difficulty with the quality of interpretation [7].

9.The Board evaluated her oral testimony with the evidence given in her non-refoulement claim form.  It found that the evidence regarding her claim that her mother wanted her to remarry were fundamentally different without satisfactory explanation; that the details of the man who her mother pushed her to remarry were vague; that the fear in relation to her ex-husband was vague and lacked specifics [49]-[57].  After considering the overall evidence, the Board found that the fundamental basis of the applicant’s claim was unsubstantiated [58]-[59].  Thus, the Board rejected her claim on all applicable grounds and dismissed her appeal.

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

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

11.In her affirmation in support of her application, the applicant enclosed the hearing bundle without specifying any ground for her application.

DISCUSSION

12.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).

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 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.

16.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.

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

CONCLUSION

18.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 22^nd day of November 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