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

HCAL 235/2019

[2022] HKCFI 701

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 235 of 2019

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 7 January 2019 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 31 March 2011 as a foreign domestic helper.  Her employment contract was terminated prematurely on 3 June 2011.  Yet, she did not depart within the time limit and had overstayed.  On 27 June 2011, she was arrested by the police.  On 14 July 2011, she lodged a torture claim which was rejected.  The subsequent appeal was also dismissed.  On 14 May 2013, the applicant lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by (i) her husband’s creditors and (ii) the Sawangan villagers.

5.According to the applicant, she was born in a Muslim family but later converted to Christian during her employments overseas.  Her family were furious about her conversion and her villagers treated her like an outsider. In August 2007, her husband told her about his loan with the creditors.  The creditors threatened to sue the applicant if she did not repay the loan and they also visited the applicant’s house to chase the repayments.  Nevertheless, the creditors did not hurt her family members.  In 2012, the applicant’s husband passed away.  From 2012 to 2013, the applicant heard from her family that the creditors had been chasing for her whereabouts.  Out of fear and worried that she would not be accepted in the community as a Christian, the applicant stayed in Hong Kong for protection.  While she was in Hong Kong, in 2018, her daughter informed her the visit of the creditors again.  Details of her claim were set out at paragraph 9 of the Director’s Decision and paragraphs 3 to 17 of the Board’s Decision as described below.     

The Director’s Decision

6.The Director considered her application in relation to the following risks:

a.  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”);

b.  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

c.  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 29 May 2018 (“the Director’s Decision”), the Director refused her claim.  The Director concluded that the level of risk of harm from her husband’s creditors or the Sawangan villagers upon refoulement was assessed to be low because (i) the absence or low frequency and intensity of past ill-treatments indicated an unlikelihood of future risk of harm [15]-[18]; (ii) state protection would be available to her [19]-[22]; and (iii) internal relocation was an option open to her [23]-[24].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 1 November 2018, the Board conducted an oral hearing, during which the applicant answered the Board’s inquiries.

9.Before the Board, the applicant confirmed that the creditors never caused any harm to her or her family.  All they wanted was repayment of the loan [24].  For the claimed discrimination as a Christian, the applicant relied on a bombing incident in 2018 in support [25].  Having considered all the evidence and the country of origin information (“COI”), the Board found that (i) based on the applicant’s own evidence, the creditors would, at most, take her to court and the Indonesian law would ensure that she would receive a fair trial.  If she was to receive any penalties, it would not be regarded as severe ill-treatment or serious harm [38]-[41]; (ii) the COI suggested that sufficient state protection was available to the applicant [42]-[51] and (iii) internal relocation to cities with majority population as Christian was open to the applicant [52]-[54].  Further, the applicant was never harmed [43];[61].  For these reasons, the Board rejected the applicant’s claim 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 24 January 2019 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 said that she was not satisfied with it.

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

Dated the 17^th day of March 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