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

HCAL 562/2019

[2023] HKCFI 327

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 562 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 20 February 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 last entered Hong Kong on 28 June 2016 and was permitted to stay as a foreign domestic helper until 28 June 2018 or two weeks after termination of the employment contract. Her employment contract was terminated prematurely on 24 September 2016. She did not depart and had overstayed since 9 October 2016. On 7 December 2016, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her foster mother, Rasya, and she would be forced to marry an old man called Abi.

5.In short, the applicant was raised by Rasya. When she grew up, Rasya kept asking her for money, especially when she went to work in Singapore. In 2014, she returned home after the completion of her work in Singapore. Rasya started to abuse her physically. In mid-2014, the applicant left home quietly. She worked in Hong Kong from 2014 to 2016. In January 2016, she returned to her home with the hope that Rasya would stop the abusive acts. However, Rasya demanded the applicant to marry Abi to settle a loan. Out of fear, the applicant decided to seek non-refoulement protection in Hong Kong. Details of her claim are set out at paragraph 8 of the Notice of Decision dated 18 September 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 her claimed fear of harm from Rasya 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 [16]-[21]; (ii) state protection would be available to her [22]-[27]; and (iii) internal relocation was a viable option [28].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 11 January 2019, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter [7].

9.The Board considered the relevant legal principles and the applicant’s claim before the Director. It also clarified matters with the applicant at the hearing [30]-[43]. Having considered the evidence, the Board made the following findings. It accepted that the applicant was an orphan raised by her foster mother. Her foster mother was abusive and pressed her to marry Abi [47]-[48]. However, it also noted that, whenever the applicant was harmed or threatened, she was able to avoid the harms [49]. Meanwhile, the applicant indicated to the Board that she was willing to return to Indonesia [50].

10.As a result, the Board concluded that the applicant’s claim was unsubstantiated 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 27 February 2019 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant said she is not satisfied with the Board’s Decision because it is unfair.

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 Decisions 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.The Board had considered her case and found that she does not have real risk of being harmed upon her return to her country and that she is willing to return to her country. The ground in paragraph 12 above is only her opinion and is not 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 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