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

HCAL 1182/2019

[2023] HKCFI 2963

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1182 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 25 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 applicant appeared before the Court on 12 June 2023.

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 foreign domestic helper on 30 March 2014 and was permitted to stay until 11 March 2015. However, on 18 November 2014, she was arrested by the police for theft and her employment contract was also prematurely terminated. On 13 December 2014, 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 Aneng.

5.The applicant’s claim arose from the domestic violence inflicted by Aneng. In short, she married Aneng in 2006. Aneng was bad tempered and addicted to drinking and gambling. The first assault occurred on 11 or 12 March 2014 when Aneng demanded money from the applicant. She refused and received ill-treatments such as kicking and hitting from Aneng. Three days later, Aneng again asked for money. Met with the refusal, Aneng strangled the applicant and threatened to kill her. A week later, he assaulted the applicant again. Out of fear, she decided to seek protection in Hong Kong. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 6 December 2017 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 low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [18]; (ii) state protection would be available to her [19]; and (iii) internal relocation was a viable option [20]-[26].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 8 October 2018, the Board conducted an oral hearing for her appeal.

9.Having considered the applicant’s claim and her personal background, the Board made the following findings. On the applicant’s own evidence, she had ceased contact with her husband since March/April 2014 and he had made no effort to contact her either [18]. She also conceded that her husband made one death threat during the second assault [19]. While she mentioned there were other further threats, she did not put them in her non-refoulement claim form nor did she mention them in the screening interview [20]-[23]. As a result, the Board found her evidence on this aspect not credible [24]. Meanwhile, despite having ample opportunities to injure or kill her, her husband did not do so [25]-[26]. In light of the premises, as well as the fact that it was a private dispute between the applicant and her husband, the Board found that the applicant’s claim was not substantiated [29].

10.In any event, state protection and internal relocation were both viable alternatives for the applicant [31]-[35].

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

11.The applicant has filed Form 86 dated 3 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 did not raise any specific ground. She submitted a written submission to the Court, saying that the Board’s Decision is unfair and it failed to meet the greater care requirement for her as an unrepresented applicant. But in view of her oral admission before the Court, these complaints are not important.

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. Before me, the applicant said that she understood the Board’s decision; that she was free to speak before the Board and that she did not think the Board was wrong in its decisions. But she also said she does not want to go back.

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 given above, had found that the applicant failed to establish that she would be subjected to the claimed risks of harm or being killed if she returns to Indonesia; and further, she would have state protection and the option of internal relocation. She does not have any valid reason to challenge the Board’s Decision. She had admitted that the Board was not wrong in its decisions.

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 1^st day of December 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