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

HCAL 1441/2019

[2024] HKCFI 632

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1441 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 22 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, aged 49, is a national of Indonesia. She last entered Hong Kong to work as a foreign domestic helper on 13 September 2013. On 8 December 2013, she was arrested for trafficking dangerous drugs and her employment contract was terminated on 15 December 2013. Subsequently, the applicant was convicted and sentenced to imprisonment of 2 years and 4 months. On 10 March 2015, the applicant made a non-refoulement claim by written representation and she submitted her non-refoulement claim form via the duty lawyer on 17 August 2018.

5.According to the applicant, her brother-in-law threatened to kill her upon her return to Indonesia as all family members were ashamed of her criminal conviction in Hong Kong. The applicant had never thought of seeking state protection. She also thought internal relocation not feasible, as she had no relatives or friends in other places. Details of her story can be found in paragraphs [7]-[8] of the Director’s Decision (“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. The Director found that: (i) there were no substantial grounds to believe that the risk of being harmed or killed was real and foreseeable [15]-[16]; (ii) state protection will be available to her upon her return [18]-[24]; (iii) internal relocation is viable [17], [25]-[26] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2, BOR 3 risk [27]-[32], Persecution risk [33]-[37] or Torture risk [38]-[41].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 25 March 2019, the Board conducted an oral hearing.

9.Having considered the applicant’s evidence, the Board found that the applicant failed on credibility with no factual basis in support of her allegation [24]-[30]. In fact, even if the applicant’s account was accepted in full, there was no real risk that she would be subjected to serious harm upon return [31]-[38], so that the applicant’s case failed to meet any of the requirements under Torture risk [53]-[59], BOR 2 or BOR 3 risk [60]-[71] or Persecution risk [72]-[76]. In any event, state protection and internal relocation were also available to the applicant [39]-[52], [77]-[81].

10.For the above reasons, the Board dismissed her appeal and confirmed the Director’s Decision.

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

11.The applicant has filed Form 86 dated 28 May 2019 for leave to apply for judicial review of the Board’s Decision.

12.The applicant asked for review of the Board’s Decision without raising any specific ground in her affirmation.

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.The Board takes the view that even if the applicant’s evidence on the facts were accepted, the applicant failed to establish any of the applicable risks. On the evidence of the case, the Board was entitled to form such view. The applicant fails to raise any 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 1^st day of March 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