Case Document

100%Judiciary

HCAL 1116/2019

[2022] HKCFI 2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1116 of 2019

BETWEEN
	Latifa Baraja	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 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 4 April 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 14 January 2015 as a foreign domestic helper. However, her employment contract was terminated prematurely on 22 February 2015. She did not depart within the time limit and had overstayed since 9 March 2015. On 12 September 2015, she was arrested by the police. On 23 September 2015, 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 2003. Her husband had never worked and totally depended on her family. He even borrowed money from creditors. As her family’s financial situation deteriorated, she started to have fights with her husband who threatened to kill her. In 2012, after she returned home from overseas employment, she found out that her husband sent their children to orphanage. She was also chased by her husband’s creditors for the repayment of his loan. Out of fear, she fled to Hong Kong for protection. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 28 August 2018 by the Director (the “Director’s Decision”) and paragraphs 10 to 27 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 (“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 rejected the applicant’s claim for the level of risk of harm upon her refoulement was assessed to be low. In elaboration, the Director found that (i) the dispute was simply a family dispute and the alleged harm inflicted by her husband failed to attain sufficient level of severity [15]; (ii) her husband showed no real intention to harm or kill her [16]; (iii) her past behaviors indicated that there was no imminent risk of harm [17]; (iv) her husband could not locate her everywhere [18]; (v) state protection would be available to her [19]-[23]; and (vi) internal relocation was a viable alternative [24]-[28].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 18 December 2018, the Board conducted an oral hearing for her appeal.

9.The Board noticed that, on her own evidence, she had ceased contact with her husband since 2012 and she no longer needed to live with him if she returned to Indonesia [28]-[32]. It considered the applicant’s claim solely an issue of domestic violence which was better to be dealt with by the local police intervention [34]. This family dispute also did not involve any state actors [60]. For these reasons, the Board found that the applicant’s claim was not substantiated and dismissed her claim. Thus, the applicant’s appeal failed.

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

10.The applicant has filed Form 86 dated 25 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 that she was not satisfied with the Board’s Decision.

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, §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 applicant has raised no valid ground 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 19^th day of July 2022

(M.O. WONG)(Ms)
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 19 July 2022 Latifa Baraja 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 19 July 2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 13241/18/9/2/I1444 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3186/18 (Formerly RBCZ 13458/15) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)