Sri Utami v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2826/2018

[2022] HKCFI 827

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2826 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 1 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 on 1 August 2015 as a foreign domestic helper.  However, her employment contract was terminated prematurely on 15 January 2016.  She did not depart within the time limit and had overstayed.  On 20 February 2016, she was arrested by the police.  On 14 March 2016, she lodged a non-refoulement claim, which was made on the basis that, if refouled, she would be harmed or killed by her husband. 

5.According to the applicant, she had an abusive relationship with her husband.  Her husband was an alcoholic, gambler and womanizer and had been physically assaulting her due to quarrels since 2003.  In 2009, the applicant returned home after overseas employments and, during her short break, her husband again attacked her on a daily basis.  Nevertheless, she did not report the domestic violence to the police because she did not want to provoke her husband and still wanted to maintain the marriage for their children.  In the ensuing years, the applicant went to trainings for her overseas employments and had worked abroad. 

6.In 2015, the applicant found out that her husband raped her cousin. Agitated by his conduct, the applicant reported her husband to the police.  He was detained by the police.  Yet, prior to her departure to Hong Kong, her husband suddenly returned and locked her up in the house for two days, assaulting her at his will and depriving her of food.  The applicant managed to escape on the third day and, out of fear, she fled to Hong Kong for protection.  While she was in Hong Kong, she received phone call of death threats from her husband.  Details of her claim were set out at paragraph 6 of the Director’s Decision and paragraphs 7 to 25 of the Board’s Decision as described below. 

The Director’s Decision

7.The Director considered the applicant’s claim 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 a Notice of Decision dated 26 June 2018 (“the Director’s Decision”), the Director refused her claim.  The Director rejected the claim that she would be harmed or killed by her husband upon refoulement because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of foreseeable and real risk of harm [12]; (ii) state protection would be available to her [13] and (iii) internal relocation was also an option [14]. 

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board.  On 24 September 2018, the Board conducted an oral hearing for her appeal.  Although the Board informed the applicant that there were questionable evidence which needed clarifications and, without the benefit of the applicant’s oral evidence, it might need to make decision on the available evidence, the applicant still elected to remain silent during the oral hearing [64]-[65]. 

10.The Board observed that, under Indonesian law, the applicant would be entitled to file a divorce and could seek help from the local police [69]-[71].  There was no indication that her husband was a state agent which prevented the relevant authorities in Indonesia from protecting her [72]. Having considered the applicant’s evidence and her claim, the Board noted that the material aspects of her claim were unsupported and not reliable.  For example, she complained about the police’s inaction about the rape incident while she did not take the police to find the victim, i.e., her cousin; her alleged injuries were not life-threatening and the attacks only occurred at home but not everywhere else; she was able to receive trainings for her overseas employments and her allegation that her husband was connected to thugs who could help him locate her in other areas was pure speculation [73].  Thus, the Board found that the applicant’s evidence lacked credibility, even to the low standard of proof required. 

11.Further, the Board found that the applicant’s conducts adversely affected her own credibility.  The applicant neither produced any documentary proof to support the material aspects of her claim nor did she attempt to seek help from the police or other organizations.  She did not report to the police about her husband’s abusive behaviors towards her when she reported the rape incident in 2015 [75].  In assessing the individual grounds, the Board found that it was a private dispute without state involvement [80] and confirmed the Director’s Decision that internal relocation was available to the applicant [82]. For these reasons, the Board rejected her claim and dismissed her appeal. 

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

12.The applicant has filed Form 86 dated 10 December 2018 for leave to apply for judicial review of the Board’s Decision. 

13.In her affirmation in support of her application, the applicant said “The Decision of the Director of Immigration [Board] was unreasonable in that he [it] failed to consider all the matters based on my claim and /or give objective reasons for his Decision.”

DISCUSSION

14.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). 

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

16.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.”

17.The applicant had been advised to answer the Board’s questions in order to clarify some of the issues on the facts of her case. Nevertheless, she refused to cooperate with the Board, which is in contravention with section 37ZA of the Ordinance^[1].

18.The Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration CACV 286/2011, 21 November 2012 [2013] 1 HKC 526 CA, Hon. Cheung CJHC, Stock VP and Fok JAheld:

“25. High standards of fairness certainly do not entitle the torture claimant, having stated a claim, “to simply sit back and require the Director to disprove it”. The exercise of determining whether a claim made under article 3(1) of the CAT is valid must be one of “joint endeavour”. CH v Director of Immigration [2011] 3 HKLRD 101, para 47”

19.There is no valid reason from the applicant to challenge the Board’s Decision.

20.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. 

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

CONCLUSION

22.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

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

[1] 37ZA.Duties of claimant

(1)It is the duty of a claimant to substantiate a torture claim, and to this end, the claimant must—

(a)provide to the Director and (on an appeal) to the Appeal Board all information relevant to the claim and make prompt and full disclosure of all material facts in support of the claim, including any document supporting those facts;