Case Document

100%Judiciary

HCAL 196/2019

[2022] HKCFI 997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 196 of 2019

BETWEEN
	Widayanti Mandasari	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 present 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 January 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”). She appeared before the Court on 7 February 2022.

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 had been working as a foreign domestic helper in Hong Kong since 2008. Her last employment contract was terminated prematurely on 19 March 2016. She did not depart after her limitation of stay expired and had overstayed since 19 June 2016. On 5 July 2016, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be discriminated because her son was born out of wedlock.

5.According to the applicant, she was pregnant with her boyfriend’s child in 2016 while she was in Hong Kong. She informed her family members but they threatened to kill her. Before the Director, she confirmed that she no longer had problems with her mother and uncle as they already accepted her son and her boyfriend. However, her fear came from the likely discrimination from the Islamic community in her home country. Together with the concern that no one could take care of her son if she was refouled, she stayed in Hong Kong. The details of the applicant’s claim were set out at paragraph 7 of the Director’s Decision and paragraphs 9 to 15 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.  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 22 March 2018 (“the Director’s Decision”), the Director refused the applicant’s claim. The Director found that no real risk of harm was present even if she was discriminated upon refoulement because (i) her perceived risk of harm was merely speculative and, in any event, localized within the neighborhood as claimed [12]-[13]; (ii) state protection would be available to her [14]-[16], and (iii) internal relocation was also an option [17].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 21 December 2018, the Board conducted an oral hearing for her appeal, during which she gave evidence with the assistance of an interpreter [17].

9.The Board accepted the applicant’s concerns that she might be discriminated and her son would be left with no care upon her refoulement. However, it concluded that neither concern attained a level of severity which warranted an international protection [25]. The Board found that there was no evidence of severe pain and suffering or of state involvement [29]. It also found that the difficulties of returning could be alleviated by the support from her family [33]. 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

10.The applicant has filed Form 86 dated 22 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 said she was not satisfied with the Board’s Decision. However, she did not specify any grounds in support of her application.

DISCUSSION

12.Before me, the applicant said that she was assisted by the duty lawyer before the immigration officer. She had told her stories to the immigration officer. Before the Board, she was allowed to speak freely. She had two children and she wanted to stay in Hong Kong.

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

15.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.”

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

17.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.

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

CONCLUSION

19.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 8^th day of April 2022

(Chasel MAN)
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 8/4/2022 Widayanti Mandasari 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 8/4/2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 11057/18/4/67/I1241 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 431/18 (formerly RBCZ/12424/16) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)