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

HCAL 2550/2019

[2023] HKCFI 2037

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. HCAL 2550 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 present in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 27 August 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”), a hearing was fixed for her and she attended the Court on 17 May 2023.

The applicant

3.The applicant is a national of Indonesia. She had worked in Hong Kong as a foreign domestic helper since 1999. Her last employment contract was prematurely terminated on 2 October 2015 and she departed Hong Kong on 16 October 2015. She last entered Hong Kong as a visitor on 21 October 2015 and was permitted to remain until 20 November 2015. She did not depart and had overstayed since 21 November 2015. On 26 November 2015, she was arrested by the police. On 2 December 2015, she lodged a non-refoulement claim which was withdrawn on 30 November 2017. On 21 March 2019, she wrote to reactivate the process of her non-refoulement claim. The applicant’s claim was made on the basis that, if refouled, she would be harmed or killed by her husband Sigit.

4.In brevity, the applicant married Sigit in around 2003. However, from 2004, Sigit had become abusive. She had been subject to domestic violence since then and, in around 2009 or 2010, Sigit assaulted her for not giving him money, which resulted in the applicant’s miscarriage. In 2014, the applicant returned to Indonesia as her mother’s health deteriorated. She left for Hong Kong in October 2014 so that she could provide financial support for her mother and it was when she last contacted Sigit. In 2015, she was informed by her neighbor that Sigit sold her house and then disappeared. Although in 2017 she withdrew her non-refoulement claim on the thought that her problem solved, it in fact remained a problem as she was told by her friend that Sigit was still looking for her in 2018. As a result, she decided to stay in Hong Kong for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 24 May 2019 by the Director (the “Director’s Decision”).

The Director’s Decision

5.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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the past experience did not support a finding of real or substantial risk of harm from Sigit [14]-[15]; (ii) state protection would be available to her [16]-[20]; and (iii) internal relocation was a viable option [21]-[22].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 15 August 2019, the Board conducted an oral hearing for her appeal.

8.Having considered the evidence, the Board found that the applicant was never severely injured; that it was her own evidence that Sigit had disappeared; that, while she withdrew her non-refoulement claim in 2017, she did not leave Hong Kong; that it was until two years later did she seek to reactivate her non-refoulement claim; that she could not have any further problem on 30 November 2017 onwards as her mother had passed away and Sigit disappeared; and that her explanation on why she failed to report to recognizance was unacceptable [22]. Meanwhile, the threats from her husband no longer existed as he had disappeared according to the applicant’s own evidence [23]. Also, state protection would be available to her [27]-[29] and internal relocation was also a viable option [42]-[45].

9.For the above reasons, the Board rejected her claim and dismissed her appeal.

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 2 September 2019 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant stated the reasons:

(1)  she was not given sufficient time to prepare for the hearing before the Board because she was only given the hearing bundle shortly before the hearing and the documents are in English; yet, she could not afford a lawyer herself;

(2)  she was confused at the Board hearing, but she had answered all questions put to her;

(3)  the Board had relied upon source of news not recognized or it is simply hearsay; and

(4)  the Board had also relied upon some outdated cases and came to its speculation that she will be safe to return to her country.

DISCUSSION

12.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).

13.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, she confirmed that the hearing before the Board was fair. Although she does not think the Board was wrong, nevertheless, she wants to stay in Hong Kong.

14.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.”

15.The Board had considered the applicant’s evidence and found that her evidence was incredible and she failed to establish that she has the real risk of being harmed or even killed if she returns to Indonesia.

16.Those grounds in paragraph 11, supra are not valid grounds to challenge the Board’s Decision. She did not raise the issue of insufficient time before the Board and she was able to answer the questions put to her. Grounds (3) and (4) are only her bare assertions without any evidence in support.

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 17^th day of August 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