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

HCAL 1000/2022

[2023] HKCFI 162

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1000 of 2022

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 present in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 29 August 2022 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), she appeared before the Court on 24 November 2022.

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 last entered Hong Kong as a foreign domestic helper on 28 June 2019 and was permitted to work until 7 December 2020 or two weeks after termination of contract, whichever was earlier.  On 22 June 2020, she was arrested by the police for a suspected offence in dealing with property known or believed to represent proceeds of indictable offence.  On 7 December 2020, 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 Sutopo.

5.In brevity, the applicant found out about her husband’s gambling problem during her vacation back home in 2019.  During her stay at home, her husband even invited some men to play card games and lost a large sum of money. Thereafter, a moneylender visited their house and told her about her husband’s debt.  Her husband asked for her help to settle the loan.  However, upon her return to Hong Kong, the applicant ceased to remit money to him.  As a result, her husband started to make death threats via telephone calls.  Out of fear, the applicant decided to seek protection in Hong Kong.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 16 March 2021 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 her claimed fear of harm upon refoulement was groundless. 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]-[16]; (ii) state protection would be available to her [17]-[23]; and (iii) internal relocation was a viable option [24]-[25].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 19 August 2022, the Board conducted an oral hearing for her appeal, during which she testified with the assistance of an interpreter [9].

9.Having considered the evidence, the Board made the following findings. First, the applicant’s alleged fear was inherently implausible [35].  In particular, on the applicant’s own evidence, she was never harmed by her husband throughout her stay in Indonesia and, if she was of the view that her husband was a risk of harm, she should have asked her children and parents to stay away from him.  Yet, they continued to live together [36]-[42].  Secondly, her new information about being assaulted by her husband once was vague and clearly an afterthought [43].  Further, her evidence about seeking help from police and other organizations was contradictory [47]-[53].  Thirdly, her evidence in the criminal proceedings was inconsistent with her claim, which was alarming [54]-[58].  In these premises, the Board concluded that the applicant’s claim lacked credibility [59]-[63].

10.Alternatively, the Board found that the applicant failed to prove that her injuries attained a minimum level of severity; that there was no evidence showing that her husband had real intention to cause harm or even kill her; and that the applicant conceded that she could avoid her husband by divorcing him [64]-[77].  In any event, state protection and internal relocation were both available to her [78]-[101]; [128]-[149].

11.Thus, 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 26 September 2022 for leave to apply for judicial review of the Board’s Decision.

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

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.  Before the Court, she said that she understands the Board of Decision and asked the Court for permission to stay in Hong Kong.

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.There is no valid ground 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.

20.At the time of preparing this decision, the Court received a letter dated 5 January 2023 from the applicant, in which she said that she wants to withdraw her case because it is safe for her to return home and she does not want to wait for the Court’s result. She wants to go back to Indonesia as soon as possible.

CONCLUSION

21.Therefore, 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 31^st day of January 2023

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