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

HCAL 660/2019

[2022] HKCFI 2143

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 660 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 26 February 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 22 June 2013 as a foreign domestic helper.  However, her employment contract was terminated prematurely on 15 October 2013.  She did not depart and had overstayed since 30 October 2013.  On 24 November 2013, she was arrested by the police.  On 19 April 2014, she lodged a non-refoulement claim.  She also lodged a non-refoulement claim on behalf of her daughter, who was born on 26 April 2015.  For the present purpose, the applicant’s daughter did not seek to challenge the Board’s Decision by way of judicial review. 

5.The applicant’s claim was made on the basis that, if refouled, she would be harmed or killed by her father Samin.  In addition, there was no available medical treatments for her daughter’s health condition.  Her claim and personal background presented before the Director were as follows.  In her version, she had been the unwanted child in the eyes of her father and thus constantly living under the state of fear during her childhood.  Since 2000, she started working overseas.  In 2015, she gave birth to her daughter after only four months’ pregnancy.  Her father was furious about this news as the daughter was born out of wedlock.  He threatened to kill both of them.  Meanwhile, since her daughter was born prematurely, intensive care and appropriate medical treatments were required.  The applicant thus also relied on the Convention on the Rights of the Child (“CRC”) that it was her daughter’s best interest to stay in Hong Kong.  Details of her claim are set out at paragraph 10 of the Notice of Decision dated 4 October 2017 by the Director (the “Director’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 (“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 claims of the applicant and her daughter for there was no real or foreseeable risk of harm upon their refoulement.  In elaboration, the Director found that (i) the absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [22]; (ii) according to the country of origin information (“COI”), state protection would be available to them and her daughter could receive sufficient health care [23]; (iii) internal relocation was also a viable option [24]; and (iv) since she and her daughter did not have the right to enter and remain in Hong Kong, they were precluded from protections under section 11 of HKBOR[1].

The Board’s Decision

8.The applicant and her daughter appealed the Director’s Decision to the Board.  On 26 November 2018, the Board conducted an oral hearing for their appeals, both of which were legally represented at the hearing and were also assisted by an interpreter [28].

9.In the applicant’s notice of appeal, she effectively submitted that the Director erred in (i) failing to give sufficient weight to the medical conditions of her daughter and the availability of medical treatments in Indonesia; and (ii) failing to conclude that the applicant would not face any risk of harm.  The applicant’s daughter, apart from repeating those advanced, added that (iii) the Director failed to assess the daughter’s claim separately and (iv) that the Director also failed to wait for the most updated medical records on the daughter’s special medical needs and on her premature birth before reaching a decision [11].  The Board also considered the most updated medical report for the daughter [12].

10.During the hearing, the Board enquired with the material aspects of the applicant’s claim and heard the parties’ respective submissions.  It noted that, on the applicant’s evidence, she only received the verbal threat from her father once and did not report to the police [31].  When asked about the medical treatments in Indonesia, the applicant stated that she could not afford and, even for free medical treatments, it required payments to apply.  Apart from the issue of payment, the applicant said she did not know whether there would be medical services available for her daughter [34].  Further, the Board considered the COI submitted by both parties [45]-[48].

11.Having examined all the evidence, the Board made the following findings.  First, in terms of the risk of harm from her father, it found that, even on the applicant’s own evidence, her father had no real intention to seriously harm or kill them.  It considered that a single threat from her father would not be sufficient to establish a risk of harm [50]-[54]. Secondly, as to the alleged lack of medical care for her daughter, the Board considered the relevant legal authorities, in particular, N v Secretary of State for the Home Department [2005] UKHL 31, on the question of lack of medical treatment on refoulement and on whether BOR3 or BOR2 risks would engage [55]-[58].  Applying the conditions of the applicant’s daughter, as evident in the medical reports, with relevant legal principles, the Board found that her conditions, while required medical care, did not satisfy the “deathbed” test in N [59];[60].  Thirdly, the COI supported the conclusion that the applicant’s daughter could have access to pharmaceuticals and other healthcare services if she required [61]-[64].  Thus, the Board concluded that the applicant’s daughter would not face real risk of harm.      

12.For the aforesaid reasons, the Board rejected the applicant and her daughter’s claims and dismissed their appeals. 

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

13.The applicant has filed Form 86 dated 8 March 2019 for leave to apply for judicial review of the Board’s Decision.

14.In her affirmation in support of her application, the applicant stated that she wanted to apply for leave for judicial review of the Director’s Decision dated 4 October 2017 and the Board’s Decision without specifying any ground.

DISCUSSION

15.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).

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

17.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.”

18.The applicant has not been able to raise any valid ground in support of her application. The Director’s Decision dated 4 October 2017 had been dealt with by the Board’s Decision and is not subject to judicial review as there is no exceptional circumstance for her to do so. There is no valid ground to challenge the Board’s Decision.

19.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.

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

CONCLUSION

21.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 15^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