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

HCAL 2610/2018

[2022] HKCFI 466

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2610 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 5 November 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”), 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 national of Indonesia.  She last entered Hong Kong on 25 December 2016 as a foreign domestic helper.  However, her contract was terminated prematurely on 24 April 2017.  She did not depart within the time limit and had overstayed.  By way of several written significations in June and July 2017, she lodged a non-refoulement claim.  The applicant’s claim was made on the basis that, if refouled, she would be harmed or killed by her bad tempered husband because of her refusal to send the money to settle his loan and her extramarital affair with another man in Hong Kong. 

5.According to the applicant, ever since she cohabited with her husband in 2010, he started to abuse her physically because he was jealous and bad tempered.  On several occasions, she was hurt by her husband with different objects, sustaining bruises and bleedings.  She was once pushed into the river by her husband and she was almost drown.  After they got married in 2012, he continued to beat her if she disobeyed his order.  When her husband found out that she had an affair with a man in Hong Kong, he threatened to kill her.  Out of fear, she stayed in Hong Kong for protection.  Details of her claim are set out in paragraph 6 of the Director’s Decision described below.

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 a Notice of Decision dated 28 March 2018 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found that there were no substantial grounds to believe that she would be harmed or killed by her husband upon refoulement [11]-[12]; that state protection would be available to her [13]  and that internal relocation was available to her [14].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  An oral hearing was held on 18 September 2018, during which the applicant gave oral testimony before the Board.

9.The Board recorded in details the applicant’s claim before the Director and that before the Board [34]-[69].  Having considered the evidence in totality, the Board refused to accept the material aspects of her claim.  For instances, the Board rejected her claim that she was badly hurt by her husband prior to their marriage as it was inconsistent with her subsequent decision to marry him [72].  It also refused to accept that the applicant did not know how to report the alleged assaults from her husband to the police [72].  Further, if the applicant was indeed seriously harmed by the husband, she could have provided medical evidence in support [73]-[74].  The Board also rejected her claimed fear of harm from her family as it was a bare assertion [75].  For these reasons, the Board rejected her claim on all applicable grounds.  Thus, the Board dismissed her appeal.

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 19 November 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 Director’s Decision and the Board’s Decision, but she did not specify any ground in support of her application.

Discussion

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

13.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).

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.Since the Board refused to accept her evidence on the facts of her case, she has no factual basis in support of her claim. The applicant has submitted no valid ground 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 to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 22^nd day of February 2022

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