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

HCAL 2385/2023

[2024] HKCFI 662

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2385 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 December 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”).  I shall deal with her application of paper.

The applicant

3.The applicant, aged 34, is an Indonesian.  She arrived in Hong Kong on 6 September 2018 to work as a domestic helper.  Her contract was prematurely terminated on 23 November 2022 and she overstayed since 8 December 2022.  The applicant was arrested by Immigration Department on 28 December 2022 and was subsequently sentenced to imprisonment for 15 months for breach of condition of stay.  The applicant made a non-refoulement claim on 31 December 2022 and 16 January 2023. The claim was made on the basis that, if refouled, she would be harmed or even killed by her husband because she had an affair with someone else.

4.According to the applicant, she married her husband in June 2010 and had a son with him in 2011.  As she worked overseas most of the time, she had informed her husband the password of her Facebook account so that he was able to know her updated situation through Facebook.  The applicant had not been on good terms with her husband and he even had an affair in 2018.  The couple had frequent quarrels.  The applicant’s husband would scold her in foul languages and call her a beast.  There were three occasions previously that he pushed and beat her and even threw a knife towards her.  The applicant did not seek any medical treatment because she was scared of her husband who always stalked her.

5.The applicant knew her boyfriend during her training as a domestic helper in Indonesia.  Her boyfriend came to Hong Kong in 2018 and met the applicant around three times.  In 2020, the applicant’s husband discovered her affair through Facebook.  He did not call the applicant but went to report her affair to her parents.  He threatened them that he would kill the applicant if he saw her in Indonesia.  He would also tell the applicant’s son that she was dead.  The applicant then called her husband regarding his behaviour towards her family members.  He told her that he would kill her because she had a change of heart and she answered back that she was doing the same thing as he did.  Since then, the couple had not communicated by phone.

6.Nothing eventful happened between mid-2020 and mid-2022.  The applicant was told by her mother that her husband had taken their son away.  By late 2022, the applicant sent a WhatsApp message to her husband because she missed her son.  Her husband replied that he would kill her if he saw her again in Indonesia and that their son would not need a mother like her.  After that, the applicant stopped contacting her husband and other family members.  In December 2022, the applicant had a casual chat with her mother, who told her that she did not have any update of her husband. 

7.The applicant did not seek help from the police because she was of the view that the police would not assist on domestic matter and she also did not want her family matter to spread around.  The applicant considered relocation within Indonesia not viable as well because she had no financial resources to settle elsewhere.

8.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 27 April 2023 (“the Director’s Decision”).

The Director’s Decision

9.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”).

10.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found there was no substantive evidence to show that the applicant faced a real and foreseeable risk upon her return to the Indonesia given her husband’s lack of intention to kill/harm her.  Furthermore, the applicant’s failure to seek assistance at her earliest opportunity was also inconsistent with the behaviour of a person genuinely in fear for life [12]-[13].  

11.In any event, (i) state protection will be available to her upon her return [15]-[19]; (ii) internal relocation is viable [14], [20]-[22] and (iii) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [23]-[28], Persecution risk [29]-[34] or Torture risk [35]-[37].

The Board’s Decision

12.The applicant appealed the Director’s Decision to the Board.  On 17 November 2023, the Board conducted an oral hearing.

13.Having considered the applicant’s evidence, the Board found that her evidence was consistent and had no issue on her credibility [39].  Yet, the Board was of the view that upon the applicant’s return to Indonesia, she can simply reside in her maiden home and initiate a unilateral divorce to avoid her husband taking into account the Country of Origin Information (“COI”).  There was also nothing to suggest that her husband is still interested in locating her given that there had been no update of him for several years [49]-[54].

14.In any event, the Board found that the applicant’s case failed to meet any of the requirements under Torture risk [40]-[44], BOR 2 and BOR 3 risk [45]-[48], [62], [69]-[72] or Persecution risk [63]-[68].  Furthermore, state protection and internal relocation are also available to the applicant according to the COI [55]-[61].

15.For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

16.The applicant has filed Form 86 dated 29 December 2023 for leave to apply for judicial review of the Board’s Decision.

17.In her affirmation in support of her application, she repeated her request for staying in Hong Kong without raising any specific reason.

DISCUSSION

18.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

19.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

20.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.”

21.The Board accept her evidence on the facts of the case.  But, having considered the applicable risks, the Board found that there is no evidence to show that she has any genuine risk of being harmed by her husband if she returns to Indonesia.

22.The applicant has raised no valid reason to challenge the Board’s Decision.  There is no reason that the Court should interfere with the Board’s Decision.

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

CONCLUSION

24.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 12^th 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