Anis Puji Handayani v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2509/2018

[2022] HKCFI 3266

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2509 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 2 November 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 worked in Hong Kong as a foreign domestic helper but her employment contract was terminated prematurely in 2013.  On 8 May 2014, she was convicted for the offence of theft and sentenced to 9 months’ imprisonment.  On 5 June 2014, 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.In brevity, the applicant’s fear originated from the risk of harm from her husband.  The applicant married her husband in around 1999.  However, their relationship deteriorated due to her husband’s drinking and gambling problems. He had become abusive towards her.  Whenever he thought that the applicant was disobedient, he would assault her, even during her pregnancy.  He also slapped their young infant.  While the applicant subsequently left for overseas employments, she returned to Indonesia for vacations and visa renewals. Nevertheless, despite she stayed away from her husband, he could still locate her.  Out of fear, she decided to stay in Hong Kong for protection.  Details of her claim are set out at paragraph 7 of the Notice of Decision dated 27 December 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:

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

b.  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”);

c.  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

d.  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 as the claimed risk of harm from her husband was unlikely to materialize.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[14]; (ii) state protection would be available to her [15]-[23]; and (iii) internal relocation was a viable alternative [24]-[31].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 6 July 2018, the Board conducted an oral hearing for her appeal. 

9.Having considered the applicant’s evidence, the Board made the following findings.  First of all, the Board highlighted matters that affected the applicant’s credibility [30].  It found that several material aspects in the applicant’s claim were inherently inconsistent.  Secondly, in reviewing the country of origin information, the Board concluded that state protection was available to the victims of domestic violence [36]-[50].  Thirdly, it was pertinent to note that the applicant’s husband was a non-state actor and there was no evidence of state involvement [52]-[58].  In addition, the alleged injuries inflicted by the husband was with bare hands and the applicant sustained no injuries that attained a minimum level of severity [63]-[64].  Meanwhile, the husband’s conducts showed no real intention to cause serious harm or even kill her [67].  Besides, the applicant’s last contact with her husband was in around 2002 to 2005 and there was no evidence of further contact.  Thus, the Board found that the alleged risk of harm from her husband was speculative [68]-[69].

10.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

11.The applicant has filed Form 86 dated 8 November 2018 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant did not raise any specific ground.

DISCUSSION

13.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).

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

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.There is no valid ground to challenge the Board’s Decision.

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 25^th day of October 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