Diyah Ayu Astuti v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 742/2019 on BabelCite. This High Court CFI judgment was delivered on 17 March 2023.
1. The applicant applies for leave to apply for judicial review of the Decision dated 22 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
Cited by 1 case · Cites 14 cases
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HCAL 742/2019 [2023] HKCFI 684 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 742 of 2019
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following;
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 22 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). 2.The applicant requested a hearing. She appeared before the Court on 17 October 2022. 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 27 March 2005 and was permitted to stay as a foreign domestic helper until 26 April 2006. However, her employment contract was terminated prematurely on 22 May 2005. She was therefore required to leave on or before 5 June 2005. She did not depart and had overstayed since 6 June 2005. On 27 January 2011, she was arrested by the police for overstaying. On 15 June 2011, she raised a torture claim which was eventually rejected by the Board on 1 March 2013. On 11 March 2013, she lodged the non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her fiancé Kumar as she refused to join his terrorist organization. 5.In brevity, the applicant engaged with Kumar in March or April 1999. In July 1999, Kumar started to pressurize her to join his terrorist group. The applicant refused. In two incidents, Kumar only verbally threatened her without harming her physically. The applicant had no information about the terrorist group. Yet, feared that the verbal threats would materialize, the applicant decided to seek protection in Hong Kong. Details of her claim are set out at paragraph 8 of the Notice of Decision dated 25 July 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:
7.By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm from Kumar was assessed to be low. In elaboration, the Director found that (i) the applicant only encountered verbal threats, which failed to attain a minimum level of severity. Meanwhile, her claimed influence of the alleged terrorist group was a mere speculation and there was no evidence that Kumar could find her everywhere in Indonesia [14]-[17]; (ii) state protection would be available to her [18]-[24]; and (iii) internal relocation was a viable option [25]. The Board’s Decision 8.The applicant appealed the Director’s Decision to the Board. Having considered the legal principles and the available documents, the Board decided that it could fairly dispose of the applicant’s appeal on paper without an oral hearing [15]. 9.The Board recapped the applicant’s claim and her personal background [16]. After assessing the evidence, the Board accepted the factual bases of the applicant’s claim, namely, she was engaged with Kumar who demanded her to join a terrorist group [20]. The Board however found that the applicant had suffered no past harms; that Kumar had never carried out any physical attacks on her despite he had ample opportunities to do so; he had never harmed the applicant’s family; and that it had been 19 years since the applicant’s last contact with Kumar [22]-[27]. In addition, state protection and internal relocation were both viable alternatives [29]; [31]-[39]. 10.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 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 has raised the grounds below.
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 Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that she understood the Board’s Decision. But she submitted that she wanted to stay in Hong Kong instead of going back to Indonesia. 15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
16.The grounds as set out in paragraph 12 above do not assist her application. According to the Board’s Decision, the Board did not challenge the applicant’s credibility. It accepted her evidence as stated in her statement. On such evidence, the Board found that there is no real risk for her to return to Indonesia. Further, she will have state protection and the option of internal relocation. It is within the Board’s power under the law that a hearing can be dispensed with if the Board considers it is just to do so. See section 12 of Schedule 1A of the Ordinance[1]. The applicant has no valid ground to challenge this decision. 17.On the issue of no legal representation for her appeal, The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:
18.On the issue of lack of interpretation service, The Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, 19 July 2019 held:
19.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 17th 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 [1] 12. Determination of appeal without a hearing
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