Yuliati Bt Rusih Wagiyo v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1362/2019

[2023] HKCFI 2428

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1362 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.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 10 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), her application is dealt with on paper.

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 entered Hong Kong on 1 August 2017 to be employed as domestic helper. However, her contract was prematurely terminated on 22 April 2018 when she was arrested by the police on the same date for the offence of theft. She was subsequently convicted and sentenced to ten months’ imprisonment on 24 April 2018. She lodged her non-refoulement claim on 26 July 2018 on the basis that she will be harmed or killed by her husband (Sarwan) if she is refouled to Indonesia.

5.According to the applicant, her marriage with Sarwan was going well until the birth of their son in about 2014. They began to have disputes due to religious differences as the applicant was Muslim and Sarwan was Catholic. He would physically and verbally abuse her, such as slapping her face and scolding her with profanity. She not did report these incidents to the police nor did she go to hospital for medical attention. When her mother suffered a stroke in about 2013, she had to borrow about 15 million rupiahs from Sarwan to defray medical expenses. As such, he used the loan as a reason to continue his abuse towards her. In about January 2017, she secretly left home as she could no longer tolerate the abuse. She did not remain in contact with her family since she left but her friend (Wati) had informed her that Sarwan would come to Wait’s house seeking her whereabouts and delivering death threats. Details of her claim are set out at [6] of the Notice of Decision dated 15 October 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) the risk of harm from Sarwan was low as there was nothing to suggest that the applicant had suffered abuse to the extent it had affected her ways of life, and on her own facts, she was able to live without harm while she was waiting for her employment in Hong Kong [12] and [13]; (ii) the harm from Sarwan was also localized as he did not have the resources to locate her all over Indonesia [14]; (iii) state protection would be available to her notwithstanding her own volition not to seek police assistance [15] – [17]; and (iv) internal relocation was a viable option [18] – [21].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 19 March 2019, the Board conducted an oral hearing for her appeal, during which she gave evidence.

9.The Board recapped the applicant’s claim, her personal background, and her oral evidence at the hearing [22] – [29]. Having considered the evidence, the Board found she was not telling the truth, such as her evasiveness when answering questions [31] and [38]. The Board was not convinced she was a reliable witness. On her own facts, she admitted Sarwan made threats of killing her, but it was never materialized as there was no real or actual risk of harm against her; she further admitted that her reason for coming to Hong Kong was to obtain financial assistance [31]. Whilst the Board was willing to accept there may have been a religious difference between her and Sarwan, this conflict did not reach to the severity to give rise to the violence or threats as alleged [38]. The Board therefore did not accept she was subjected to violence and assaults by Sarwan. In any event, it held that her problem with Sarwan was localized and internal relocation was a viable option [43] and [61].

10.For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

11.The applicant has filed Form 86 dated 21 May 2019 for leave to apply for judicial review of the Board’s Decision.

12.The applicant’s reason in support of her application is that she considers the Board’s Decision is unfair.

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.For the reasons given in paragraph 9, the Board rejected her evidence.

17.The applicant has raised no valid ground to challenge the Board’s Decision. 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 26^th day of September 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