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

HCAL 1393/2019

[2024] HKCFI 473

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1393 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.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 9 May 2019 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.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Indonesia. She last entered Hong Kong on 12 July 2011 as a foreign domestic helper. Her employment contract was prematurely terminated on 22 September 2011. On 3 October 2011, she was arrested by the Immigration Department. On 6 October 2011, she was granted bail by the court but she absconded. On 5 August 2015, she was re-arrested by the police. On 20 October 2015, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her father.

5.In brevity, the applicant entered into an unpleasant arranged marriage with an Indonesia man when she was around 19 years old pursuant to her father’s instruction. Her husband later deserted her and their children. In order to support the family, the applicant had been working as a foreign domestic helper. In around 2010, while she was working in Hong Kong, she met her boyfriend who was a Chinese. Yet, her father strongly opposed their marriage proposal as her boyfriend as not an Islam and he wanted to arrange another marriage for the applicant. Traumatized by the previous arranged marriage, the applicant refused. As a result, in December 2017, her father threatened to kill her if she refused to comply with his request. It was the last time she contacted her father. Yet, feared for her life, 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 30 August 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 the applicant’s claim. In elaboration, the Director found that (i) there was no real or substantial risk of harm from her father [11]-[13]; (ii) state protection would be available to her [14]-[16]; and (iii) internal relocation was a viable option [17]-[18].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 22 January 2019, the Board conducted an oral hearing for her appeal, during which she testified with the assistance of an interpreter [6].

9.The Board recapped the applicant’s claim [8]-[11]. Having considered the evidence, the Board made the following findings. At the outset, the Board noted that the applicant’s oral evidence in relation to her claim was vague, superficial and robotic that did not have a ring of truth and did not reflect a description of lived experience [24]. Further, her evidence was fundamentally incoherent on the central elements, to which she provided no explanations [25]. Meanwhile, her claim before the Director and that before the Board changed drastically [27]-[28], which cast serious doubt to her credibility [29]. In light of the vagueness and inconsistency of her claim, the Board concluded that the applicant was not a witness of truth [32] and thus rejected her claim. The applicant’s appeal was therefore dismissed.

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

10.The applicant has filed Form 86 dated 22 May 2019 for leave to apply for judicial review of the Board’s Decision.

11.The applicant has, in her affirmation, raised no specific ground in support of her application.

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.For the reasons given in paragraph 9 above, the Board rejected her evidence.

16.The applicant has raised 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 26^th day of February 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