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

HCAL 680/2019

[2022] HKCFI 2065

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 680 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 Decision dated 12 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”), which the applicant put down the date as 20 February 2018. This error 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 proposed respondent is the Board, the Director of Immigration (“the Director”) is the interested party and the date of the Board’s Decision is 12 February 2019 instead of 20 February 2018.

The applicant

4.The applicant is a national of Indonesia. She last entered Hong Kong on 7 May 2016 as a foreign domestic helper. Her employment contract was however terminated prematurely on 18 January 2017 and she was required to leave on or before 1 February 2017. She did not depart and had overstayed since 2 February 2017. On 26 May 2017, she was arrested by the police for overstaying. On 28 May 2017, 9 June 2017, 13 June 2017 and 28 June 2017 respectively, she lodged a 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 1993. From 1995 onwards, her husband was addicted to gambling, drinking and drugs. He started to physically abuse the applicant. The assaults stopped in 1996 and her husband went missing from 1997 to 2000. In 1999, she was told that some debt collectors visited her house for her husband’s loan. While her husband suddenly returned home in 2000, he made death threats to the applicant, demanding her to repay his debts. He also forced the applicant to sleep with him which, in 2008, led to the birth of their second daughter. While she was in Hong Kong, she was informed that her husband was still posing death threats. Out of fear, she stayed in Hong Kong for protection. Details of her claim are set out at paragraph 8 of the Notice of Decision dated 6 February 2018 by the Director (the “Director’s Decision”) and paragraph 14 of the Board’s Decision.  

The Director’s Decision

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

(1)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(3)  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

(4)  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 for the level of risk of harm from her husband upon refoulement was assessed to be low. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]; (ii) state protection would be available to her [14]-[18]; and (iii) internal relocation was a viable alternative [19]-[20].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 23 November 2018, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter [7].

9.The Board inquired the material aspects of the applicant’s claim. It considered the applicant’s oral evidence to be problematic, constantly changing and inherently inconsistent [20]. In particular, she gave inconsistent accounts on the details of her relationship with her husband [22]. She was also inconsistent as to her husband’s background [23] and the status of her children [24]. She was vague about her contacts with her husband [29]. She was also unable to explain the discrepancies in relation to the debt and debt collectors [32];[34]. In light of these inconsistencies, the Board found that the applicant’s claim lacked credibility [36]-[38].

10.For the aforesaid reasons, the Board rejected the applicant’s claim and dismissed her appeal.  

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

11.The applicant filed Form 86 dated 11 March 2019 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant said she did not want to go back to Indonesia because her husband would kill her.

DISCUSSION

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

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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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.The Board had considered the merits of the applicant’s case and given reasons in support of its conclusion. The Board rejected her evidence on the facts of her case, which means she does not have any factual basis in support of her claim. Her ground in support of her application does not assist her application.

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 to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 8^th day of July 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