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

HCAL 1160/2019

[2023] HKCFI 2194

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1160 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 26 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, she appeared before this Court on 15 March 2023.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Indonesia. She came to Hong Kong to work as a domestic helper in June 2006. Her employment contract was terminated on 19 August 2015. She was allowed to stay until 2 September 2015. She did not leave Hong Kong and overstayed since 3 September 2015. On 20 January 2016, she surrendered to the Immigration Department. By a letter of 13 June 2016, she lodged a non-refoulement claim on the basis that, if refouled, she will be harmed or even killed by her husband due to domestic violence.

5.According to the applicant, she came to work as a domestic helper in 2006 because she was subjected to domestic violence from her husband, who hit her and squeezed her neck. She did not report the matters to police because she had no faith in police. She has sons living with her husband in Indonesia. Her husband always assaulted her and her sons. Her husband demanded payment of money from the applicant and threatened that if she did not pay money to him, he would stop providing food to their sons. Her husband told her friend that he would black magic to kill her if she returned to Indonesia. She is afraid of black magic. Details of her story can be found in paragraph 9 of the Director’s Decision described below.

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 Notice of Decision dated 12 June 2018 (“the Director’s Decision”), the Director dismissed the applicant’s claim for the reason that her alleged risks of being harmed or killed by her husband were not substantiated. In essence, the Director found that the level of risk of harm from her husband upon her return to Indonesia was assessed to be low [11]; that state protection would be available to her [16]; and that internal relocation would be a viable option for her [20] & [21].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 27 March 2019, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter. The Board noticed that the applicant was having eye problem and she needed a friend to guide her as she walked. However, the Board was satisfied that she was fit for the hearing. Having considered the applicant’s evidence, the Board had reached the following conclusions:

a.  there were inconsistencies between her Non-refoulement Claim Form (“NCF”) and her evidence at the hearing before the Board [30] to [62];

b.  the Board did not accept that the applicant was a truthful witness and it did not accept that she was beaten, threatened or assaulted by her husband, or that her husband was violent towards her or demanded money from her [63];

c.  there is no real risk of her facing harm from her husband if she returns to Indonesia now or in the foreseeable future; and her sons, family members and relatives would provide her with protection, assistance and support, including transportation fees to seek medical care; and that there is a range of government and non-government services and facilities available to her for her vision problems in Indonesia [65]; and

d.  state protection is available in Indonesia [66].

9.For the above reasons, the Board 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 May 2019 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant set out the reasons below. In her grounds, she referred to the decisions made by the Director. The Director’s Decision is not subject to judicial review once she had appealed to the Board, Re: Moshsin Ali [2018] HKCA 549 at §45[1]. I shall therefore consider the grounds against the Board’s Decision.

1.  The Board did not arrange interpretation or translation in respect of the hearing bundle and the Board’s Decision for her. She was not notified of her rights as a litigant and a non-refoulement claimant.

2.  She is not sure if the Board had taken into account of the issues of corruption and the fact that police are highly under-resourced in Indonesia.

3.  She was not legally represented at the Board hearing. Nor was she assisted in her preparation for the hearing.

4.  She is of the view that she should be considered as a member of a particular social group, namely, women from an abusive behaviour. She further believed that the Board had not taken on board the issues of women being abused or discriminated in Indonesia.

5.  The Board’s attitude was unfair in that it had failed to take into consideration of the time lapse and pressure to which she was subject when she gave evidence and it ultimately found that her evidence was incredible. When the adjudicator commented that she had signed the NCF, the adjudicator did not take into account of the fact that the hearing bundle was not translated for her and the NCF contents were not explained to her before she signed.

6.  The Board had wrongly exercised its case management by using biased and formula approach to come to its conclusion of state protection and medical facilities being available to her. But the fact is, it is not possible for the applicant to obtain full medical facilities in Indonesia.

7.  Because of there being no assistance to her, the Board is far from achieving high standard of fairness.

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 Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant confirmed that she understands the Director’s Decision and the Board’s Decision. She also confirmed that the hearing before the Board was fair. She said she does not want to return to Indonesia yet as she is not well and she wishes to be allowed to stay in Hong Kong until she is fully recovered.

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, for the reasons given above, concluded that the applicant’s evidence was inconsistent or even contradictory.

16.As to the grounds in paragraph 11, grounds 2, 4, 5, 6 and 7 are speculations, general or bare allegations without evidence in support. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”

17.As to ground 1, the Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, 19 July 2019 held:

“16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.”

18.Further, the Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 held:

“I8. … …Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.”

19.As to ground 3, the Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:

“22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”

20.There is no valid ground from the applicant to challenge the Board’s Decision.

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 for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 29^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