Case Document

100%Judiciary

HCAL 2554/2018

[2022] HKCFI 831

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2554 of 2018

BETWEEN
	Surtini	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 Decision dated 22 October 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 21 May 2014 as a visitor but did not depart since her limit of stay expired. She had overstayed in Hong Kong since 21 June 2014. On 6 July 2015, she was arrested by the Hong Kong police. On 20 July 2015, 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 husband.

5.According to the applicant, her husband had been physically abusing her since their marriage in 2007. He was a womanizer with a drinking problem and depended on the applicant to support him financially. Initially, while the applicant was working in Hong Kong, she was able to remit money to her husband. Yet, he had been using the money to have affairs with other women and drinking. The applicant decided to divorce him but it was of no avail as the husband asked for 10 million Indonesian Rupiahs if she wanted a divorce. He threatened to kill her upon her return if she did not give him that sum of money. Out of fear, she stayed in Hong Kong for protection. Details of her claim were set out at paragraph 7 of the Director’s Decision and paragraph 4 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.       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 26 February 2018 (“the Director’s Decision”), the Director refused her claim as there were no substantial grounds for believing that there would be any real risk of her being harmed or killed by her husband upon refoulement. The Director found that (i) the low frequency and intensity of past ill-treatments were indicative of an unlikelihood of future risk of harm [12]; (ii) the dispute was private without state involvement [13]; (iii) state protection would be available to her [14]-[16] and (iv) internal relocation was an option open to her [17]-[18].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 6 September 2018, the Board conducted an oral hearing for her appeal, during which the applicant answered the Board’s inquiries.

9.The Board raised doubts and sought clarifications from the applicant [17]-[40]. Having considered the applicant’s evidence and the country of origin information, the Board found that there was no risk of harm upon the applicant’s return for the following reasons: (i) it was unlikely that the applicant would have contacts with her husband again [47]-[50]; (ii) even if she did, she would be able to seek help from relevant authorities [51]; and (iii) internal relocation was available to her [52]. For these reasons, the Board rejected her claim on all applicable grounds 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 13 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 if she returned to Indonesia, she would be killed.

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 Decision 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 28^th day of March 2022

	(K.H. LI)
	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 28 March 2022 Surtini 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 28 March 2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 10747/18/3/199/I1171 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3/18 (Formerly RBCZ/12439/15) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)