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

HCAL 1051/2019

[2022] HKCFI 1568

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1051 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 Notice of Decision dated 20 July 2018, the Decision of the Director of Immigration (“the Director’s Decision”), which had been dealt with by the Decision dated 15 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The application also covers the Notice of hearing dated 13 November 2018, which is not amenable to judicial review. Form 86 will be rectified below.

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, the Director of Immigration (“the Director”) is the interested party and the relief sought is the Board’s Decision.

The applicant

4.The applicant is a national of Indonesia. She last entered Hong Kong in 2005 as a foreign domestic helper. Her employment contract was terminated on 2 January 2008 and she had to leave Hong Kong by 16 January 2008. She overstayed and was arrested for possession of identity card relating to another person and for unlawful overstaying in Hong Kong. She was convicted and sentenced. She lodged torture claim by a written representation on 9 April 2009 and was rejected on 20 January 2012. By a written signification on 11 June 2013, she lodged non-refoulement claim. Her claim is on the basis that, if refouled, she would be killed by her stepfather.

5.According to the applicant, she lived with his stepfather together with her step-sister and her brothers. In 2003, she was 19 years old. Her mother went to work in Singapore. Her step-father had attempted to rape her 3 times. He took off her clothes and attempted to rape her. She refused and screamed. He stopped. He threatened to kill her if she reported the matter to police or other relatives. She did not report the matter to police. In 2005, through the agent, she came to Hong Kong and work as a domestic helper. Since then, she had never returned to Indonesia. Details of her story are set out in paragraph 8 of the Director’s Decision described below.

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

(1)  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”);

(2)  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

(3)  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 refused the applicant’s claim. The Director found that the level of risk of harm upon her refoulement was assessed to be low because (i) the events happened long ago, there was no reasonable basis of fear of the same in future [15]; (ii) state protection would be available to her [17-21], and (iv) internal relocation was an option open to her [22 & 23].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board and appeared before the Board on 8 February 2019 at a hearing.

9.The Board accepted that the applicant’s step-father attempted to rape her three times in late 2003 [46]. However, the Board considered that there was not a real chance that her step-father would harm her or try to kill her because there was no reason for him to suppose that she told anyone that he had previously tried to rape her [48]. It was satisfied that internal relocation was an option open to her [49 & 50]. Thus, 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 17 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 enclosed the hearing bundle without setting out any specific ground.

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 ground 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 13^th day of June 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