Endah Sri Handayani v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 988/2019

[2023] HKCFI 1879

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 988 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 9 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court fixed a hearing on 16 January 2023 for her. However, she was absent without prior notice to the Court. Her application is therefore dealt with on the papers.

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 as a visitor on 8 January 2015 and was permitted to stay until 7 February 2015.  She did not depart and had overstayed since 8 February 2015.  On 20 November 2015, she surrendered to the Immigration Department.  On 26 April 2016 and 24 May 2016 respectively, 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 for a monetary dispute, and by her father for her adultery. 

5.In brevity, the applicant used to own a clothing business which was operated on a loan taken out from a bank.  Her father-in-law pledged his house for the loan.  However, the clothing business failed and the applicant defaulted the monthly payment which irritated her father-in-law.  Meanwhile, the applicant’s husband suspected that she was having an affair.  Thus, in mid-2010, he beat the applicant on the street.  The applicant then escaped to Hong Kong.  While she was in Hong Kong, she met a man and was impregnated.  In 2016, her family and her husband found out about her affair and both threatened to kill her.  At the same time, after she gave birth to a daughter in Hong Kong, she was depressed as her boyfriend pressured her to go back to Indonesia but she could not return in fear of the death threats.  As a result, the applicant sought protection in Hong Kong.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 24 September 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.  In elaboration, the Director found that (i) based on her alleged past harm and threats, it was unlikely that she would face real or substantial risk of harm from her father or husband [11.1]; (ii) state protection would be available to her [12]-[16]; and (iii) internal relocation was a viable option [17]-[19].

The Board’s Decisions

8.The applicant appealed the Director’s Decision to the Board.  On 18 February 2019, the Board conducted an oral hearing for her appeal, during which she testified. 

9.The Board considered the applicant’s claim and her personal background [8]-[16].  It also summarized her oral evidence [17]-[26] and examined the country of origin information (“COI”) [27]-[30].  Having considered all these evidence, the Board found that the applicant’s evidence on her husband’s violence varied; her evidence on her family’s attitude also differed; and she could not offer credible explanations to these inconsistencies [32]-[36]. Meanwhile, the COI did not support her claim that she would suffer serious harm due to societal discrimination or denial of access to government services or she would be located by her husband and father everywhere if refouled [37]-[41].

10.For the aforesaid findings, 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 11 April 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 (1) the Board was wrong to fetter its discretion by refusing her appeal; (2) the Board was unfair in dealing with her appeal; (3) the Board was unreasonable and irrational; (4) the Board failed to meet the greater care duty to a self-represented claimant; and (5) the Board had not visited her country to understand the real situation before making its decisions.

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, for the reasons above, rejected her evidence on the facts of her case.  The reasons stated in paragraph 12, supra are only her opinions without any evidence in support.  It is unnecessary for the Director to visit her country to understand the situation there as the Director was entitled to rely on the COI.  Those grounds 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 27^th day of July 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