Case Document

100%Judiciary

HCAL 2744/2018

[2021] HKCFI 3816

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2744 of 2018

BETWEEN
	Wminarti Saidjan	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 Decisions respectively dated 30 October 2015 and 22 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decisions”). The first Decision dealt with the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk and the second Decision on the BOR 2 risk as described below. She is out of time for the first Decision. However, since the Board had to rely upon the facts in the first Decision for its determination of the second Decision, it is only reasonable to consider the first and the second Decisions together.

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 a citizen of Indonesia. She came to Hong Kong as a domestic helper in 1998. Her employment was terminated pre-maturely. She overstayed and was arrested by police on 11 September 2009. On 19 June 2013, the Immigration Department received her non-refoulement claim.

5.The applicant claimed that, if refouled, she would be harmed or killed by her ex-husband, Tumirin because she had an affair with a fellow villager and born his child during Tumirin’s long absence from home.

6.Tumirin left home soon after the marriage for three years. She had an affair with another village mate. This man escaped upon hearing that Tumirin was returning home. Tumirin knew about the affair. He was very angry and had beaten her 4 times. He also threatened to kill her and to use black magic on her. Her son was born and she lived in her friend’s premises. Tumirin found her and assaulted her and her son. She left for Hong Kong to work as a domestic helper. Details of her story are set out in the Director’s first Decision at paragraph 6.

The Director’s Decisions

7.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”).

8.By Notice of Decision dated 18 February 2015 (“the Director’s Decision”) and Notice of Further Decision dated 17 February 2017 (the “Director’s Further 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 Tumirin if she returned to Indonesia was assessed to be low [12]; that state protection would be available to her [14]; that a number of government and non-government agencies in Indonesia would provide support service to her [16] and that internal relocation was an option open to her [17]. In the Director’s Further Decision, the Director found that she failed to establish, by evidence, that she would be subjected to violation of her BOR 2 right if she returned to Indonesia [8].

The Board’s Decisions

9.The applicant appealed to the Board against the Director’s Decisions. The Board, having considered the relevant authorities of the Court of Appeal’s decision in ST v Betty Kwan & Ors CACV 115/2013 at paragraphs 20-54 and the paper Assessment of Credibility in Refugee and Subsidiary Protection under the EU Qualification Directive: Judicial Criteria and Standards, prepared by Allan Mackey and John Barnes for the International Association of Refugee Law Judges (IARLJ) in its role as a partner in the “Credo Project”, January-December 2012, determined that the appeal could be dealt with on the papers without an oral hearing. See §§19-23.

10.The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision. In paragraph 60 of the Board’s Decision, the Board recorded:

“I conclude therefore that while there may be a chance that Tumirin will act violently towards the Appellant if they meet in Indonesia, it is unlikely that such any pain or suffering inflicted on her will be severe, or that it will be inflicted with the active or passive consent or acquiescence of any public official or person acting in an official capacity.”

11.The Board had also considered that if its decision on the risk is incorrect, the applicant still has the option of internal relocation open to her [72].

12.On the same factual basis, the Board rejected her claim on BOR 2 risk in its Decision dated 22 November 2018.

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

13.The applicant has filed Form 86 dated 3 December 2018 for leave to apply for judicial review of the Board’s Decisions.

14.In her affirmation in support of her application, the applicant simply annexed the Board’s first Decision and the Director’s second Decision with her affirmation without specifying any specific grounds.

DISCUSSION

15.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decisions 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).

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

17.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.”

18.The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

20.I refuse to grant her leave to apply for judicial review of the Board’s Decisions. Accordingly, I dismiss her application.

Dated the 23^rd day of December 2021

(Allen LEE)
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 23/12/2021 Winarti Saidjan 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 23/12/2021 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 1094/15/3/14/I28; BOR 238/17/3/9/I13 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 707/14, RBCZ 9001641/16 (Formerly RBCZ 287/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)