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

HCAL 744/2019

[2023] HKCFI 609

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 744 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 25 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 and her application is dealt with 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. However, her employment contract was prematurely terminated and she was required to leave on or before 23 April 2015. She did not depart and had overstayed since 24 April 2015. On 15 August 2016, she surrendered herself to the Immigration Department and lodged a non-refoulement claim on 27 March 2017. Her claim was made on the basis that, if refouled, she would be harmed or killed by her husband, and her husband’s creditor.

5.In short, while the applicant worked in Hong Kong, she converted her religion to Christianity in 2011. In May 2013, she returned to Indonesia for vacation. In the third week of her stay, her husband hit her for not practicing Salah. Her family members were also furious about her conversion and her father asked her to leave home. In July 2014, her husband assaulted and demanded her to repay his loan. Feared that her husband’s loan shark would chase her for repayments, 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 31 January 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 from her husband or the loan shark 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 and that she had no director or continuous contact with the loan shark [12]; (ii) state protection would be available to her [13]; and (iii) internal relocation was a viable alternative [14].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 5 November 2018, the Board conducted an oral hearing for her appeal, during which she answered the Board’s inquiries with the assistance of an interpreter [8];[28].

9.The Board noticed that, on the applicant’s evidence, she had ceased to attend Church two years ago and no longer practiced Catholicism [31]. It also considered the country of origin information and found that Christianity was in fact the second largest faith practiced in Indonesia [32]. The Board was also doubtful about her contact with her family and noted that she had ceased contact with her husband for four years at the time of the hearing [33]-[35]. As a result, the Board concluded that the applicant would not face a risk of harm from her husband or her family due to her changed religion [37].

10.Insofar as the claimed fear of harm from the loan shark was concerned, the Board found that her evidence on this claim was problematic and inconsistent and thus concluded that she would not face any real risk of harm from the loan shark or her husband due to an outstanding debt [38]-[43].

11.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

12.The applicant has filed Form 86 dated 18 March 2019 for leave to apply for judicial review of the Board’s Decision.

13.In her affidavit in support of her application, the applicant said that she does not want to go back to Indonesia because she is afraid of her husband. He would kill her because she cannot pay him money and she had changed her religion.

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.

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.The grounds as set out in paragraph 13 above do not assist her application. The Board refused to accept her evidence in support of her claim.

18.There is no valid ground to challenge the Board’s Decision.

19.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.

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

CONCLUSION

21.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