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

HCAL 1200/2019

[2023] HKCFI 2621

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1200 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 3 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with her application on paper.

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 entered Hong Kong as a foreign domestic helper.  Her last employment contract granted her permission to stay until 11 March 2017 or two weeks after the termination of her employment contract, whichever was earlier.  On 21 January 2017, her employment contract was prematurely terminated and she was required to leave on or before 4 February 2017.  She did not depart and had overstayed since 5 February 2017. On 23 February 2017, she surrendered to the Immigration Department.  On 7 March 2017, 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 or her husband’s creditor. 

5.In brevity, the applicant’s marriage deteriorated after her husband became addicted to drinking.  Since 2008, she became the breadwinner of the household and her husband had been physically abusing her and also demanded money from her.  The situation got worse in 2014.  On an unknown date, some people visited the applicant’s house and demanded a large sum from her for the settlement of her husband’s debt.  Her complaint to the police was of no available.  Later, the applicant’s husband, together with the aforementioned gangsters, attacked the applicant and her family members.  Her complaint to the police headquarter was also of no avail due to lack of evidence.  A few days later, the applicant’s motorcycle was hit by a car, from which her husband came out and assaulted her.  Out of fear, the applicant decided to seek protection in Hong Kong.  Details of her claim are set out at paragraph 7 of the Notice of Decision dated 11 January 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 her claim.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [14]; (ii) the conducts of her husband and the gangsters showed no real intention to cause serious harm or even kill her [15]; (iii) the conflict with her husband and the gangsters was a private and personal matter [16]; (iv) her behaviors were inconsistent with someone who genuinely feared a risk of harm [17]; (v) state protection would be available to her [18]-[21]; and (vi) internal relocation was a viable option [22]-[23]. 

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 18 January 2019, the Board conducted an oral hearing for her appeal, during which she testified [68].  Before the Board, the applicant added that she experienced a miscarriage due to the assaults, a piece of information which she left out before the Director [68].  Another piece of information that was omitted before the Director was that she was sexually assaulted by one of the gangsters in January 2015 [71]. 

9.Having considered the applicant’s evidence, the Board found that she was not a credible witness [78].  It further found that the applicant’s alleged injuries in these incidents failed to attain the minimum level of severity [99]-[102]; that the purpose of the applicant’s husband and those gangsters was to pressurize the applicant to repay the loan and that there was no involvement of state interests.  Besides, the alleged enemies were all private individuals without acting in the capacity of the public officials [105]-[107].  After scrutinizing the country of origin information, the Board concluded that state protection would be available to her [119]-[149] and that internal relocation was also an available alternative [150]-[166].   

10.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

11.The applicant has filed Form 86 dated 6 May 2019 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant only attached a copy of the Board’s Decision but did not raise any specific ground.

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.There is no valid ground 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 31^st day of October 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