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

HCAL 2558/2018

[2022] HKCFI 515

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2558 of 2018

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 2 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 entered Hong Kong as a foreign domestic helper in 2016.  Her last employment contract was terminated prematurely on 30 July 2016.  However, she did not depart and had overstayed since 14 August 2016.  She was arrested by the police on 24 November 2016.  By way of the written representations dated 1, 5, 7, 9 December 2016 and 6 January 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 stepmother and creditor. 

5.According to the applicant, her father married the stepmother in around 2012.  When the applicant returned home, the stepmother kept persuading her to marry a rich man who was also the stepmother’s creditor.  The stepmother claimed that she borrowed the debt for the medical expenses of the applicant’s father.  Unable to endure the stepmother’s continuous harassment, the applicant moved to another village where the stepmother and the creditor visited her from time to time. Her mother threatened her to marry the creditor and attacked her upon her refusal.  The applicant sustained bruises on her leg.  Out of fear, she left for Hong Kong for employment so as to repay the debt.  However, when her contract was terminated, she was afraid that they would kill her for the defaults in repayment.  Details of her claim are set out in paragraph 7 of the Director’s Decision and paragraphs 7 to 18 of the Board’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 30 October 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 substantial grounds for believing that there would be any real risk of her being harmed or killed by her stepmother or the creditor upon refoulement [11]-[13]; that state protection would be available to her [14]-[16] and that internal relocation was available to her [17]-[18].

The Board’s Decision

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

9.Having considered the applicant’s evidence and seeking clarifications from her during cross-examination, the Board dismissed her appeal.  The Board observed that the applicant’s manner in giving evidence tended to be exaggerating and that she constantly changed the stories.  Thus, the Board found that the core aspects of her claim lacked credibility [60].  Her oral testimony deviated largely from those stated in her non-refoulement claim statement [61]-[65].  It was also not plausible that the applicant did not know the amount of the debt which she undertook to repay [66].  Further, the Board found that it was at most a family dispute without state involvement or acquiescence [71] and that the nature, severity and frequency of the applicant’s alleged harm did not attain the level of severity which amounted to torture [74].  The Board also found that she could access to state protection [77].  As a result, the Board refused to accept her claim on all the applicable grounds.  

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 14 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 said that the Decision disregarded the threat.

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.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 28^th 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