Ida Yayuk Trisnawati v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 74/2019

[2023] HKCFI 328

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 74 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 5 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[1]. She last entered Hong Kong as a foreign domestic helper on 18 October 2016 and was permitted to stay until 14 April 2017 or two weeks after termination of the employment contract, whichever was earlier. Her extension of stay was granted and she was permitted to stay until 18 April 2018. However, her employment contract was terminated prematurely on 22 April 2017. She did not depart and had overstayed since 7 May 2017. On 9 May 2017, she surrendered herself to the Immigration Department. On 1 November 2017 and 5 November 2017, she lodged her non-refoulement claim.

5.The applicant’s claimed fear of harm was from her ex-husband, Mohammad Effendi. In short, the applicant entered into an arranged marriage with Effendi in around 2011. Effendi married her for her money. Since the marriage, Effendi had been asking the applicant for money. Whenever she refused, he would hit her. Thereafter, the applicant sought overseas employments and ceased contact with Effendi in 2013. When she returned to Indonesia in October 2014 to arrange for new visa, she stayed with her sister and did not encounter her ex-husband. In October 2016, she learnt that her ex-husband appeared in her mother’s house shortly before her mother died. In January 2018, her sister informed her that Effendi was still looking for her. Out of fear, she stayed in Hong Kong for protection. Details of her claim are set out at paragraph 6 of Notice of Decision dated 21 March 2018 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 was groundless. In elaboration, the Director found that (i) the dispute was in essence a domestic violence dispute and the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]; (ii) Effendi did not show any real intention to cause serious harm or kill her [13]; (iii) there was no evidence of Effendi’s influence [14]; (iv) state protection would be available to her [16]-[18]; and (iv) internal relocation was a viable option [19]-[20].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. Having considered the relevant legal principles and the available information, the Board decided that it could fairly dispose the applicant’s appeal on paper without an oral hearing [16]-[20].

9.The Board recapped the applicant’s claim and her personal background [21]. It considered that the claimed injuries sustained by the applicant failed to attain a minimum level of severity [23]; that it was purely a domestic matter without state involvement [24]; that there was no evidence of police inaction [30]; that there were on-going reforms of police efficiency in Indonesia [31]; and internal relocation was not unduly harsh for her [43]. For these 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

10.The applicant has filed Form 86 dated 9 January 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 rejected the Board Decision as they disregarded her dangerous situation.

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 ground in paragraph 11 above is her bare assertion or opinion without any evidence in support. There is no valid ground to challenge the Board’s Decision.

16.The Court therefore 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 to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 21^st day of February 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