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

HCAL 1799/2023

[2024] HKCFI 172

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1799 of 2023

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.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 7 September 2023 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.

The applicant

3.The applicant, aged 30, is a national of Indonesia.  She came to work as a domestic helper in 2019.  Her contracted was terminated and she returned to Indonesia in January 2023.  On 12 February 2023, she came to Hong Kong as a visitor.  She was arrested by police on 15 February 2023 for assisting in the management of a vice establishment.  She was convicted of the charge of breach of condition of stay for taking up unapproved employment and was sentenced to 2 months’ imprisonment on 3 April 2023.  By written signification dated 10 April 2023, she lodged non-refoulement claim on the ground that, if refouled, she will be subjected to ill-treatment or even killed by her husband, Wahyu Irawan and her sister-in-law (“her enemies”).

4.Briefly stated.  The applicant married her husband in Indonesia in 2010.  Her husband began to abuse her in around late 2011. He beat her causing bruises all over her body.  She did not report to police for fear that they could not help her as she did not have money to bribe them.  She decided to come to Hong Kong for work as a domestic helper.  Her husband agreed, provided that she remit money to him.  She did remit money to her husband when she worked in Hong Kong.  But her husband was not happy because he did not have enough.  He threatened her that he would kill her if she returned to Indonesia.  Her sister-in-law had also sent her text messages, threatening to kill her because the applicant had humiliated her family.  The applicant considers that police cannot protect her and she is unable to relocate herself as she has no money and no friend to help her.  Details of her story are in paragraph 6 of the Notice of Decision dated 7 June 2023 (“the Director’s Decision”).

The Director’s Decision

5.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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that: (i) from her experience in Indonesia, the chance of her getting harmed from her enemies is low [12]-[14]; (ii) state protection will be available to her upon her return [16]-[22]; and (iii) internal relocation is viable [23-[27].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 31 August 2023, the Board conducted an oral hearing for her with an interpreter.   

8.Having considered the applicant’s evidence [36], the Board came to the conclusion [40]:

(1)  It is unlikely that her husband or her sister-in-law would seriously harm of kill her if she were to return to Indonesia.

(2)  It is unlikely that the applicant will face the alleged risks throughout Indonesia.

(3)  It is unlike that the applicant will suffer injuries up to the required severity.

(4)  There is evidence to show that the applicant may get assistance in Indonesia and there is no evidence to show that police will not give her protection in Indonesia.

(5)  Internal relocation is a viable option [84]-[91].

9.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

10.The applicant has filed Form 86 dated 9 October 2023 for leave to apply for judicial review of the Board’s Decision.

11.In support of her application, the applicant submitted that her life is in danger in Indonesia.

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 Decisions should be examined with rigorous examination and anxious scrutiny.

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 found that the applicant failed to show that she will be subjected to any real risk as she alleged if she returns to Indonesia.  From the evidence, the Board was entitled to form such views.

16.The applicant has raised no valid ground to challenge the Board’s Decision.

17.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

18.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 30^th day of January 2024

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