Ni Made Avu Ariani v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 867/2022

[2024] HKCFI 271

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 867 of 2022

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.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 2 August 2022 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 the Court on 29 November 2023.

The applicant

3.The applicant is a national of Indonesia.  She last entered Hong Kong on 1 January 2020 and was permitted to remain until 27 June 2021.  Her employment contract was terminated prematurely on 16 July 2020.  On 28 July 2020, she applied for an extension of stay.  She was allowed to remain as a visitor until 27 August 2020.  She then obtained another employment contract and was permitted to stay as a foreign domestic helper until 5 August 2021 or two weeks after termination of contract, whichever was earlier.  On 6 December 2020, her employment contract was terminated prematurely and she had overstayed since 21 December 2020.  On 8 January 2021, she surrendered herself to the Immigration Department.  On 10 February 2021, 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 Moch Munif.

4.In brevity, the applicant claimed to be a victim of domestic violence since her marriage with Munif in 2002.  After she came to Hong Kong in 2017, she returned home once in 2019 and did not encounter any problem.  In December 2020, she informed her husband that she lost her job and intended to return home.  Her husband threatened to kill her if she returned as she would be unable to remit money to him.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 25 October 2021 by the Director (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 because her claimed fear of harm was groundless.  In elaboration, the Director found that (i) on the applicant’s own evidence, the feared risk of harm from her husband was not as serious or imminent.  It was only a domestic violence dispute which could be resolved by seeking assistance from the authorities or staying away from her husband [13]; (ii) her husband was not powerful nor influential [14]; (iii) state protection would be available to her [15]-[21]; and (iv) internal relocation was a viable option [22]-[27].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 29 July 2022, the Board conducted an oral hearing for her appeal, during which it clarified certain matters with her [33].  Before the Board, the applicant advanced a new claim that she had changed her religion from Hindu to Islam and, even if she returned, she would not be accepted by her family.  When asked whether her family would harm her, the applicant stated that she did not know [34]-[35].

8.The Board considered the applicant’s evidence.  It found that the applicant had been living with Munif for 18 years as a normal couple.  Despite her claimed abuses from Munif, she still returned home to live with him in 2019 and there was nothing eventful happened.  Meanwhile, the applicant was the breadwinner of their family.  It would be illogical for her husband, who relied on her financial support, to kill her.  Besides, the country of origin information had showed that she could seek protection from the authorities [39]-[47].  As to her claimed risk of harm due to her change of religion, the Board rejected it as she failed to provide any evidence to support such assertion [49].  In any event, the Board found that internal relocation was a viable option for the applicant [57]-[61].

9.Therefore, the Board found that the applicant’s claim was not substantiated 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 1 September 2022 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant enclosed the Board’s Decision without raising any specific ground.

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.  Before me, the applicant confirmed that she was free to express herself before the Board.  She asked the Court to allow her to stay in Hong Kong.

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 was entitled to form the views as it had done in paragraph 8.  There is no valid reason to challenge the Board’s Decision.

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

CONCLUSION

17.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