Yuli Ifa Kusrini v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 2294/2018

[2022] HKCFI 2993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2294 of 2018

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 14 September 2018 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 as a foreign domestic helper on 18 September 2014 and was permitted to remain until 18 September 2016, or two weeks after the termination of her employment contract. Her employment contract was prematurely terminated on 20 December 2014. She did not depart and had overstayed since 4 January 2015. On 10 May 2015, she was arrested by the police for overstaying. On 20 May 2015, she lodged her non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her husband.

5.In brevity, the applicant claimed that she had been a victim of domestic violence since 2001. When she revealed the situation to her parents. Her parents urged her to leave her husband and to work overseas. In January 2005, the applicant started her overseas employments. In mid-2008, she returned home to renew her passport. Her husband kept visiting her house and harassed her. He also posed constant death threats, which fueled the anxiety of the applicant’s mother who subsequently passed away. While the applicant was working in Hong Kong, she received a phone call of death threat from her husband who discovered her relationship with her boyfriend. Out of fear, she decided to stay in Hong Kong for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 18 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 applicant’s claim on the basis that she would not face any real or substantial risk of harm if refouled. In elaboration, the Director found that (i) the alleged injuries did not attain a minimum level of severity [12]; (ii) her conducts were inconsistent with someone who would face imminent threats [13]; (iii) her husband had no real intention to harm or even kill her [14]; (iv) the threats, if any, were localized [15]; (v) state protection would be available to her [17]-[20]; and (vi) internal relocation was a viable alternative [21].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 17 July 2018, the Board conducted an oral hearing for her appeal, during which she testified [12].

9.Having considered the evidence, the Board made the following findings. At the outset, the Board accepted that the applicant had a boyfriend in Hong Kong. However, it rejected the material aspects of her claim. In particular, the Board attached no credence to the applicant’s assertion that her husband threatened to kill her because of her relationship with her boyfriend [20]. It also rejected the applicant’s claim that her husband demanded money from her as her evidence was inherently inconsistent [21]-[24]. It further rejected the applicant’s inconsistent versions of her mother’s death [25]-[27]. As to the alleged domestic violence, the Board observed that the applicant was unable to provide the details [30]-[35]. It also noted that her evidence on her husband’s harassment and threats in mid-2008 was vague and inconsistent [36]-[41].

10.In light of the unresolved inconsistencies, the Board concluded that she was not a victim of domestic violence and refused to accept her claimed fear of harm from her husband. In addition, the Board noticed that her husband had ceased contact with her since 2014. It therefore found that her husband had no on-going adverse interest on her [50].

11.For the above 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

12.The applicant has filed Form 86 dated 22 October 2018 for leave to apply for judicial review of the Board’s Decision.

13.In her affirmation in support of her application, the applicant stated that she would not like to return to her country as it is dangerous to do so. She is not satisfied with the Immigration Department’s Decision.

DISCUSSION

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

16.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.”

17.The applicant has not raised any valid reason to challenge the Board’s Decision.

18.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.

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

CONCLUSION

20.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 30^th day of September 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