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

HCAL 1305/2018

[2021] HKCFI 3415

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1305 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 applies for leave to apply for judicial review of the Decision dated 6 April 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”), her application will be dealt with on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration is the interested party.

The applicant

4.The applicant is a citizen of Indonesia.  She came to Hong Kong as a foreign domestic helper.  Her last employment contract was terminated pre-maturely on 22 November 2014.  She overstayed since 7 December 2014.  Thereafter, she came back and forth between Mainland China and Hong Kong.  She last entered Hong Kong on 31 January 2015 as a visitor and overstayed since 23 February 2015.  On 16 March 2015, she surrendered herself to the Immigration Department.  On 21 September 2015, she lodged a non-refoulement claim.

5.The applicant claimed that, if refouled, she would be harmed or killed by her husband Arif because she had no money to give him.  The applicant married Arif in around 2000.  They had a son together. Shortly after their marriage, the applicant found out that Arif had an affair. She confronted Arif but, instead, Arif hit her.  In around 2002, her relationship with Arif’s family members also turned sour.  Further, in 2008, she fought with Arif over a religious issue and was slapped and expelled from home by Arif.  She left home to work overseas.  Thereafter, while she was working overseas, Arif demanded the remittance of all her salary and threatened to kill her if she disobeyed.  The parties ceased contact in 2015.  Details of her story are set out in paragraph 6 of the Director’s Decision described below and paragraph 9 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 June 2017 (“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 husband if she returned to Indonesia [13]-[15]; that state protection would be available to her [16] 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.  On 20 February 2018, she appeared before the Board and made submissions to supplement her claim.

9.Having considered the applicant’s oral testimony and the available documents, the Board affirmed the Director’s Decision and dismissed her appeal.  The applicant testified before the Board that she was now with her current husband.  While her current husband was in detention, she intended to go to India with her current husband and younger son after he was released from prison [30].  While the Board accepted that the ex-husband might have verbally threatened her or caused physical harms to her, it found that the applicant and the current husband’s reunion might not stretch too far into the future.  Thus, if the applicant was refouled, she would not stay in Indonesia for a lengthy period of time [35].  The Board also rejected her fear that there was government violence as such fear was vague and unfounded [37]-[39].  In any event, internal relocation to cities like Jakarta was available to the applicant [51]-[54].  Thus, the Board rejected her claim on all applicable grounds.    

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

10.The applicant has filed Form 86 dated 6 July 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 Board’s Decision 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.There is no valid reason from the applicant to challenge the Board’s 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 25^th 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