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

HCAL 1297/2019

[2024] HKCFI 742

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1297 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 dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with her application 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 in 2008 to as a foreign domestic helper and her contract was terminated on 15 October 2010. She did not depart within the stipulated deadline and became an overstayer on 30 October 2010. She was arrested by the police on 6 May 2011 and raised a non-refoulement claim on 17 June 2013 on the basis that she would be harmed or killed by her ex-husband (Agus Efendi) due to their marital dispute. Prior to her non-refoulement claim, she made a torture claim on 19 May 2011 but was rejected by the Immigration Department on 17 January 2013.

5.In summary, the applicant claimed that in around July 2006, she discovered Agus’s infidelity with a neighbor. However, he denied this and despite other neighbors’ eye-witnessed the same, he continued his denial. Whilst Agus did not physically harm the applicant, his philandering caused great disturbance to her. When she could no longer tolerate such degeneracy, she made arrangements to work in Hong Kong to escape. When she returned to Indonesia for a visit in June or July 2008, she demanded a divorce from Agus. He refused her request. After she returned to Hong Kong for work in September 2008, Agus began demanding money every month. She refused. The situation worsened in July 2009 when Agus made death threats against the applicant on the telephone. She changed her mobile number thereafter to avoid the mental torture inflicted from Agus and their last contact was in early 2010. When she met her current husband in Hong Kong in around mid-2017, she sought assistance from her family to divorce Agus. Upon checking with the Indonesian authorities, it was discovered that Agus had already divorced her in 2011. Details of her claim are set out at paragraph [8] of the Notice of Decision dated 24 August 2018 by the Director (the “Director’s Decision”). In light of her previous torture claim, the Director assessed her non-refoulement claim on all applicable grounds other than Torture risk[1].

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  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

c.  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) the absence or low intensity and frequency of the ill-treatment from Agus in the past was indicative of a small future risk of harm, as he never hurt the applicant physically [14]; (ii) there was only verbal threats made over the telephone and in the end, Agus divorced her without any notification which meant it is likely he no longer held a grudge against her; and she admitted in her written record before the Director that she was no longer in fear of returning to Indonesia [15]; (iii) state protection was available which further lowered or negated the perceived level of risk [17] and [18]; and (iv) internal relocation alternatives were available and reasonable [19] – [22].

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 answered questions from the Board with the assistance of an interpreter [8].

9.The Board held that due to the applicant’s own admission that she was no longer in fear of her safety in Indonesia, there was no reason to accept that she would face any risk of any form of harm if refouled [26]. The Board separately queried whether she could have withdrawn the appeal, which she responded by stating she maintained her appeal to seek more time to obtain the dependent visa with her current husband [25]. In light of this, there was nothing to substantiate her claim under any of the relevant grounds of non-refoulement protection [28] – [30].

10.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

11.On 15 May 2019, the applicant filed Form 86 for leave to apply for judicial review of the Board’s Decision.

12.In the applicant’s affirmation in support of her application, the applicant enclosed the Board’s Decision without raising any specific ground.

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 Decision 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 had, for the reasons given above, assessed her situation and found that she does not have any real risk of harm from her ex-husband if she returns to Indonesia.

17.There is no valid ground from the applicant to challenge the Board’s Decision.

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 for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 19^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