Wiwik Nur Yani v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1017/2019

[2023] HKCFI 3068

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1017 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 1 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”), she appeared before Court on 15 February 2023.

The applicant

3.The applicant is a national of Indonesia.  She last entered Hong Kong as a foreign domestic helper on 20 August 2009 and was permitted to remain until 24 August 2011 or two weeks after the termination of her employment contract, whichever was earlier.  On 14 December 2009, her employment contract was prematurely terminated.  She did not depart and had overstayed since 29 December 2009.  On 25 January 2010, she was convicted of breach of condition of stay and was sentenced.  On 19 January 2010, she raised a torture claim which was later rejected.  On 3 March 2010, she was released on recognizance. 

4.On 11 October 2010, she was arrested again for taking up unapproved employment and subsequently convicted and sentenced.  After she was released from prison, she was transferred to the Immigration Department.  On 11 August 2011, she was released on recognizance.  She failed to report to the Immigration Department. On 27 May 2017, she was rearrested.  By way of the written significations dated 12 June 2017 and 15 June 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 ex-husband and his creditor.  

5.In brevity, the applicant had been a victim of domestic violence since her marriage with her husband in 2003.  In around 2006, her husband forced her to work in Hong Kong so that she could remit money for him.  Initially, she complied with his request.  However, starting in 2007, she refused to send him any money if he did not use the sum on her family.  Later, the applicant’s mother informed her of her husband’s loan at the sum equivalent to HKD500,000 from a loan shark. 

6.In 2009, her husband married another girl.  Worse still, in 2011, he threatened the applicant via telephone that she should not return to Indonesia since she was unable to settle his loan.  Her last contact with her husband was in 2011 when he also told her that he gave her phone number to the creditor. Meanwhile, her husband also sold her mother’s house to settle the loan.  The applicant stated that the creditor had been calling her and chasing for loan repayments since 2011.  Out of fear, she decided to seek protection in Hong Kong.  Details of her claim are set out at paragraph 9 of the Notice of Decision dated 22 September 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

7.The Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  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

c.  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”).

8.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-treatment indicated an unlikelihood of future risk of harm [14]-[15]; (ii) state protection would be available to her [16]-[19]; and (iii) internal relocation was a viable option [20].  In passing, the Director also noted that her delay in lodging the non-refoulement claim was inconsistent with someone who genuinely feared a risk of harm [21]. 

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board.  On 16 January 2019, the Board conducted an oral hearing for her appeal, during which she testified with the assistance of an interpreter [16]. 

10.The Board recapped the applicant’s claim, her personal background and oral evidence at the hearing [5]-[30].  Having considered the evidence, the Board made the following findings.  At the outset, the Board found that her evidence about the key parts of her claim was vague and inconsistent.  Nevertheless, it formed the view that her evidence was most likely based on her personal experience [35].  Further, the Board took into account the country of origin information about the loan sharks and domestic violence [37].  The Board found that it was unable to dismiss the applicant’s claim on the basis of lack of credibility and decided to afford her the benefit of doubt and accepted the core aspects of her claim [38]. 

11.In assessing the individual grounds, the Board found that there was no substantial ground to believe that she would face any real risk of harm if refouled [52]; that the Indonesian authorities could provide appropriate protection [53]; that internal relocation would be available to her [54]-[57]. Meanwhile, the claimed risk of harm was not originated from any convention reasons as it was purely financial and personal disputes [62]. 

12.For the above reasons, the Board rejected the applicant’s claim and dismissed her appeal.

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

13.The applicant has filed Form 86 dated 15 April 2019 for leave to apply for judicial review of the Board’s Decision.

14.In her affirmation in support of her application, the applicant raised the following grounds:

(1)   the hearing bundle was given to her several days before the hearing and she did not have sufficient time to prepare her case;

(2)   the documents were in English and she could not afford an interpreter;

(3)   she was confused at the hearing and did not know what was happening;

(4)   but she was able to answer all the questions put to her by the adjudicator;

(5)   the Board had relied on source of news which is not officially recognized or it is simply hearsay and some of the cases are outdated;

(6)   the Board had made speculation that it is safe for her to return to her country;

(7)   the Board had not been to her country to understand the situation there; and

(8)   the Board had made wrong decisions.

DISCUSSION

15.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).

16.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 if she finds her family in Indonesia, she may return to Indonesia. She asked for more time to stay in Hong Kong.

17.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.”

18.The Board, for the reasons given above, had found that the applicant was unable to establish the risks as alleged in support of her claim. It also found that state protection is available to her and internal relocation may be a viable option if she returns to Indonesia.

19.Her grounds set out in paragraph 14, supra, do not assist her. Grounds (1) to (4) relate to her complaints in relation to the hearing before the Board. She did not complain to the Board for an adjournment for more time to prepare her case. The fact that she could not afford an interpreter is not a valid ground. Grounds (5), (6) and (8) are her opinions without any evidence in support. Ground (7) also fails as the Board had relied on the country of origin information to understand the situation in Indonesia. It is unnecessary for the adjudicator to go there personally.

20.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.

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

Dated the 12^th 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