Septi Aditiyaning Rahayu v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 910/2019

[2022] HKCFI 1204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 910 of 2019

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 1 March 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 entered Hong Kong on 23 October 2014 to work as a foreign domestic helper.  However, her employment contract was terminated prematurely on 17 August 2015 and she was required to leave on or before 31 August 2015.  She did not depart and had overstayed since 1 September 2015.  On 17 November 2015, she surrendered to the Immigration Department.  On 25 January 2016 and 28 November 2017 respectively, she lodged non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her husband.

5.According to the applicant, she married her husband in 2009.  From early 2011 to September 2013, her husband had been physically abusing her whenever he was unemployed or got drunk.  In February 2011, the loan shark visited her house and demanded repayment of a loan took out by her husband due to his gambling problem.  The applicant’s husband threatened and assaulted her, demanding her to repay the loan for him.  During the applicant’s stay in Hong Kong, in August 2015, her husband accused her of having an affair and threatened to kill her if she returned.  Out of fear, she stayed in Hong Kong for protection.  Details of the applicant’s claim are set out at paragraph 6 of the Notice of Decision dated 29 June 2018 by the Director (the “Director’s Decision”) and paragraphs 8 to 14 of the Board’s Decision as described below.

The Director’s Decision

6.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.     risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“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 way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director refused to believe that she would face real risk of harm from her husband or the loan shark if refouled because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [11]-[15]; (ii) state protection would be available to her [16]-[17]; and (iii) internal relocation was a viable alternative [18]-[19].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 17 December 2018, the applicant attended the scheduled oral hearing before the Board and gave evidence to clarify her claim. 

9.The Board explored the material aspects of the applicant’s claim [15]-[21].  Having considered all her evidence, the Board accepted her fear of harm from her husband [23]-[24].  Nevertheless, it noted that the applicant had ceased contact with her family, including her child, for two years and did not wish to reconnect with them [26].  It considered the applicant’s assertion that her husband could locate her anywhere in Indonesia to be baseless [27].  As a result, the Board concluded that the applicant failed to establish her claim and thus dismissed her appeal.

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

10.The applicant has filed Form 86 dated 3 April 2019 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant said she was not satisfied with the Board’s Decision and it was not safe for her to return to her own country.

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.The Board has given its reasons for its Decision. 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 4^th day of May 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