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

HCAL 1408/2019

[2024] HKCFI 463

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1408 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 10 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 Rules of the High 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 entered Hong Kong on 7 January 2010 as a foreign domestic helper and was permitted to stay until 1 August 2011 or two weeks after the termination of the employment contract, whichever was earlier. On 7 May 2010, her employment contract was prematurely terminated. She did not depart and had overstayed since 22 May 2010. On 7 April 2011, she was arrested by the police. On 12 May 2011 and 27 June 2013, she lodged the non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her father.

5.The applicant claimed that she had an abusive father. In 2009, she was informed by her mother about her father’s extramarital affair. She was also told by her relative that her mother was assaulted by her father’s mistress. While her brother reported the assault to the police, their father threatened to kill their mother if he did not withdraw the complaint. Later, the applicant returned home but nothing eventful happened. In 2010, the applicant heard that her father poured gasoline on her mother with an attempt to set her mother on fire. She also learnt that the mistress persuaded her father to convert the applicant to Christianity. Unable to tolerate these behaviors, the applicant phoned her father about her disapproval of the affair. Her father was furious and threatened to ill-treat the applicant just like her mother if she returned. Out of fear, the applicant decided to seek protection in Hong Kong. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 9 July 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 foreseeable risk of harm from her father upon her refoulement [17]; (ii) state protection would be available to her [18]; and (iii) internal relocation was a viable option [19].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 4 January 2019, the Board conducted an oral hearing for her appeal, during which she answered the Board’s inquiries [26]-[36].

9.Having considered the evidence, the Board found that the applicant was not and would not be at risk of harm from her father [38]. It found that the described circumstances of her family had no impact of her life since 2007 [38]; that there was no evidence to support the applicant’s claim [39]; that the applicant was evasive and unwilling to answer straightforward questions put to her [40]; that she was able to relocate to other cities should there be any risk of harm from her father [41];[46]; and that the state protection would be also be available to her [45].

10.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

11.The applicant has filed Form 86 dated 23 May 2019 for leave to apply for judicial review of the Board’s Decision.

12.In the affirmation in support of her application, the applicant said she wants to stay in Hong Kong as her problem still exists in Indonesia. Her father has a temper and he always wants to hurt her.

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.

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

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

18.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.

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

CONCLUSION

20.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