Komala Dewi Bt Tarnipan Samiri v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 743/2019

[2023] HKCFI 608

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 743 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 21 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall 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 30 April 2012 and her last employment contract allowed her to stay until 5 September 2016, or two weeks after the termination of the contract, whichever was earlier. However, her employment contract was prematurely terminated on 19 March 2016. She failed to depart and had overstayed since 3 April 2016. On 8 April 2016, she surrendered to the Immigration Department. On 12 April 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 husband, Arip Pujianto, because she failed to give him money.

5.In brevity, the applicant married Arip in 2006. After Arip’s business failed, he started to demand the applicant for money. Her failure to meet Arip’s demand would lead to his assaults. As she was unable to find a job in the home country, she resorted to overseas employments. The applicant worked in Singapore and Qatar before coming to Hong Kong. However, during her first vacation returning home in 2010, she was assaulted by Arip. In her second vacation, she dared not return home. She stayed in different areas of Indonesia and confirmed that her husband never came to see her in person. Nevertheless, she still feared towards her husband’s abusive acts and, when she came to Hong Kong, she decided to stay for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 6 February 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 from her husband was assessed to be low. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [11]-[12]; (ii) state protection would be available to her [13]-[15]; and (iii) internal relocation was a viable alternative [16]-[19].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 23 November 2018, the Board conducted an oral hearing for her appeal, during which she testified with the assistance of an interpreter [7];[19].

9.The Board first recapped the applicant’s claim and her personal background. It then proceeded to consider the issue of credibility. The Board expressed concerns that the applicant’s evidence contained significant discrepancies. For example, in relation to how her husband accumulated the debt, the applicant provided two versions. One was that he borrowed the debt for his business but the other was that he borrowed the money to replace the sum stolen from him by a partner [35]. Also, she was contradictory as to the details of the assaults [37]. Meanwhile, her evidence on remitting all the money gained from overseas employment to Arip was illogical in the context that she also claimed her mother was sick and in need of medical expenses [38]. The Board also noticed that, in her statement, she said that Arip could still locate her after she changed her contact information before 2015. Nevertheless, in the oral evidence, she stated that she gave Arip the contact information and also remitted money to him voluntarily [43].

10.In light of these significant inconstancies which the applicant was unable to explain, the Board found that the applicant’s evidence lacked credibility. In this premise, 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 18 March 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 that she does not want to go back to Indonesia because her husband will kill her as she cannot return money or give him money to pay the bank and the debt collector.

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 evidence and found that it was incredible. The grounds set out in paragraph 12 above are not valid 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 14^th day of March 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