Ayu-dwi-artanti v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 819/2024

[2024] HKCFI 1848

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 819 of 2024

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 8 May 2024 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing.  I shall deal with her application on paper.

The applicant

3.The applicant, aged 25, is a national of Indonesia.  She came to Hong Kong to work as a domestic helper on 8 December 2021.  Her employment contract was prematurely terminated on 27 November 2022.  She did not leave Hong Kong and was arrested by the Immigration Department on 13 June 2023.  She was charged and convicted of the offence of illegally remaining in Hong Kong and was sentenced to 15 months’ imprisonment.  She lodged her non-refoulement claim on the basis that, if refouled, she would be harmed or killed by (i) her father and Roy due to the default of her father’s loan and (ii) by her father and the people in her village due to her sex orientation.

4.According to the applicant, her father borrowed a loan from Roy, the moneylender in 2021.  He was unable to repay.  He suggested her to marry Roy for settlement.  She refused.  She went to live in her friend’s home for 3 days.  She was taken by her father back home and was locked in a room.  Her father released her after she agreed to repay the loan for him.  She came to Hong Kong to work as a domestic helper in 2021.She remitted money to her father.  But she learned from her brother that her father did not apply the money to repay the loan.  Whilst in Hong Kong, she had a relationship with another domestic helper.  She posted their romantic photograph on Facebook.  Her father was very angry.  He threatened to kill her if she returned to Indonesia. She said that she would be bullied if she returned to Indonesia because of her same sex relationship.  Details of her story are set out in paragraph 7 of the Director’s Notice of Decision dated 28 September 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 under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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 low intensity and frequency of past ill-treatment inflicted in Indonesia was indicative of low future risk of harm upon her return to Indonesia [14] and there was no evidence to show that her father and/or Roy intended to kill her [15]; (ii) state protection would be available to her [18] and (iii) internal relocation would be available and reasonable [23] – [30].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 23 April 2024, the Board conducted an oral hearing for her with an interpreter.   

8.Having considered the applicant’s evidence [42]-[72], the Board came to the conclusion:

“38. …She has offered no coherent reasons as to why she could not simply go to elsewhere in Indonesia, such as to Jakarta where she has previously worked and thus avoid any threat otherwise posed by her father or the moneylender.

39. Whilst the COI indicates that members of the LGBTI community may face serious problems in Indonesia, it also indicates that these problems are less serious in Jakarta, and I find that even if her claim to face harm because of her sexuality should she return to her home village is accepted she can reasonably be expected to live in Jakarta should she return to Indonesia, and that she would not face a real risk of serious harm there. …”

9.For the above reasons, the Board dismissed her appeal.

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

10.The applicant has filed Form 86 dated 22 May 2024 for leave to apply for judicial review of the Board’s Decision.

11.The applicant has raised no specific ground in her affirmation in support of her application.

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 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).

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

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.For the reasons given above, the Board considers that she has failed to establish that she will have any real risk of harm if she returns to Indonesia.

16.The applicant has raised no 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 of the Board’s Decision.

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 the 29^th day of July 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