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

HCAL 1969/2023

[2024] HKCFI 668

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1969 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 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 17 August 2023 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 11 December 2023.

The applicant

3.The applicant, aged 47, is a national of Indonesia. She last entered Hong Kong to work as a foreign domestic helper on 16 February 2017. She was permitted to stay as a domestic helper until 16 March 2018. She overstayed and was arrested by police on 13 September 2022. She was charged and convicted for the offence of taking employment without the permission of the Director. She was sentenced to 15 months’ imprisonment. She lodged her non-refoulement claim by written signification dated 28 November 2022 on the basis that, if refouled, she will be harmed or killed by her ex-husband, Karyono, as she did not remit her salary in Hong Kong to him.

4.According to the applicant, one month after her marriage with Karyono in 2001, she discovered that Karyono was unfaithful to her. When she confronted him, he slapped her face. Then, she went to Taiwan to work as a domestic helper. She had remitted some money to Karyono when she worked in Taiwan. She did not comply with Karyono’s request to remit all her earnings to him. In 2005, she finished her contract and returned to Indonesia. She had lost contact with Karyono. She came to Hong Kong to work as a domestic helper in 2015. She remitted $2500 to her sister to look after her daughter in Indonesia. Her sister in Indonesia told her that Karyono was looking for her and he had about 15 followers. She did not have money to bribe the police. She considers that internal relocation is not viable for her as she does not have financial resources to start a new life. Details of her story can be found in paragraph [6] of the Director’s Notice of Decision dated 24 February 2023 (“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.  The Director found that (i) the level of risk of harm as the applicant alleged was low as Karyono had no intention of killing her and the evidence that Karyono would harm her was only hearsay [14]-[15]; (ii) there was no evidence to show that the state was involved [16]; (iii) state protection would be available to her [18]; (iv) there are official and non-official organizations that will render assistance to her [20]; and (v) internal relocation alternatives are available and reasonable [24]-[28].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 4 August 2023, the Board conducted an oral hearing.

8.Having considered the applicant’s evidence, the Board did not accept that her family and herself had received any actual threat or harm since 2005 and she and her family have never sought help from the police or other authorities [41 d & e]. In the circumstances, the Board found no evidence from the applicant to establish any of the applicable risks.

9.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

10.The applicant has filed Form 86 dated 2 November 2023 for leave to apply for judicial review of the Board’s Decision.

11.The applicant, in her written submission, said that her husband had asked for money. She said if she returns to Indonesia, she will be killed by him. She cannot go back to Indonesia because her life is still in danger.

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 said she understands the Board’s Decision and she does not wish to go back to Indonesia.

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.From the evidence, 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 right to say that the applicant failed to demonstrate that she is subjected to any of the applicable risks if she returns to Indonesia. The applicant fails to raise any valid ground 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 14^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