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

HCAL 54/2019

[2023] HKCFI 367

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 54 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 24 December 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 5 July 2015 and her limitation of stay was later extended to 1 March 2018 or two weeks after the termination of her employment contract, whichever was earlier.  Her employment contract was terminated prematurely on 19 March 2017.  However, she did not depart on or before 2 April 2017 and had overstayed since 3 April 2017.  On 24 April 2017, she was arrested by the police for overstaying.  By way of written significations bearing various dates in May 2017 and June 2017, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her family because of her relationship with a Catholic boyfriend and of their child born out of wedlock.

5.According to the applicant, she entered into an arranged marriage with Susanto in around 2004.  However, she never loved Susanto and was secretly in love with her first boyfriend Nugroho.  Her family members were furious about her affair with Nugroho and the subsequent pregnancy with him after she divorced Susanto.  Her brother assaulted her and so did her aunt and uncle. The applicant had no choice but left for Nugroho’s house.  Thereafter, she went back to the village to attend a meeting with the village head and her ex-husband.  However, she was insulted and threatened during the meeting.  She then ceased contact with her family and had been living in Nugroho’s house from 2008 to 2010 uneventfully.  In around 2011, Nugroho took them to Jakarta and she decided to work overseas.  In around 2013, the applicant returned home to visit her parents’ graves.  She bumped into her brother who again threatened to kill her.  Out of fear, she decided to stay in Hong Kong for protection.  While in Hong Kong, she lost contact with Nugroho and her daughter.  Details of her claim are set out at paragraph 7 of the Notice of Decision dated 28 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 the level of risk of harm upon refoulement was assessed to be low.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments from her family, ex-husband or people from her village indicated an unlikelihood of future risk of harm [15]-[16]; (ii) state protection would be available to her [17]-[19]; and (v) internal relocation was a viable alternative [20].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 7 September 2018, the Board conducted an oral hearing for her appeal, during which she was legally represented and answered questions from the Board and the Director’s legal representative with the assistance of an interpreter [8];[30].

9.Having recapped the applicant’s claim and her personal background, as well as the relevant legal principles, the Board found that, on balance of probabilities, the applicant’s claim was acceptable [35]-[36].  The Board noted that the applicant had not lived in her home village since 2007 and had been living in Jakarta with Nugroho and their daughter for a couple of years before she came to Hong Kong [38].  It then proceeded to consider whether the applicant would face any real risk of harm if returned to Jakarta [39].

10.It found that the applicant’s claimed risk of harm from her brother was remote [40]; that she no longer had the interreligious marriage with Nugroho and thus there was no future risk of harm [41]; and that, based on the concession of the applicant’s lawyer, the risk of harm as a single mother did not amount to the level of persecution [42].

11.It is pertinent to note that the applicant’s lawyer provided the country of origin information on the situation of children born out of wedlock and submitted a new claim that her daughter would suffer harm as someone without a birth certificate.  However, the Board noticed that there was no evidence to the birth certificate and, even if the daughter was without certificate, it rejected that she would suffer any risk of harm [44].

12.In particular, the Board found that, on the applicant’s own evidence, she had no knowledge whether her daughter was attending the school.  Even if the Board accepted that the applicant was able to locate her daughter and persuaded her boyfriend to allow their daughter to live with her, it did not consider the harassment or discrimination, if any, would cause any undue hardship to the applicant or prevent her from relocating to Jakarta [50].

13.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

14.The applicant has filed Form 86 dated 8 January 2019 for leave to apply for judicial review of the Board’s Decision.

15.In her affirmation in support of her application, the applicant said she does not want to return to Indonesia because her life will be in danger as she had relationship with a man of different religion and had a baby born out of wedlock. In her village, she will be punished.

DISCUSSION

16.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).

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

18.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.”

19.The grounds in paragraph 15 above had been considered by the Board and were rejected. There is no valid ground to challenge the Board’s Decision.

20.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.

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

CONCLUSION

22.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 28^th 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