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

HCAL 1703/2019

[2024] HKCFI 1884

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1703 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 oral submissions by the Applicant 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 5 March 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. 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, aged 41, is an Indonesian. She last arrived in Hong Kong as a visitor on 7 June 2014 and she overstayed since 8 July 2014. She surrendered to the Immigration Department on 16 July 2015.  On 6 April 2016, the applicant was convicted of overstaying and was sentenced to imprisonment for four weeks suspended for three years. The applicant made a non-refoulement claim on 7 June 2017 and 9 August 2017. The claim was made on the basis that, if refouled, she would be harmed or even killed by her parents and her husband.

5.According to the applicant, she first came to Hong Kong to work as a foreign domestic helper in 2003. Upon completion of her two-year contract, she returned to Indonesia and married her husband, though the marriage had not been officially registered. She gave birth to her eldest son with her husband in 2006 in Indonesia.

6.In 2009, she returned to Hong Kong to work as a foreign domestic helper. Later, she acquainted her boyfriend, who was a Hong Kong resident. She gave birth to two children with her boyfriend in 2015 and 2016 in Hong Kong.  Her neighbour in Indonesia who was working in Hong Kong told the applicant’s family her updated situation.  Later on, her younger brother informed the applicant that her parents could not accept her two children born in Hong Kong and her husband also threatened to kill her if she returned to Indonesia.

7.Meanwhile, the applicant also borrowed money from two friends. Her parents hit her once a week. Furthermore, her husband had also beaten her up whenever she made mistakes in taking care of her son in Indonesia and sometimes he felt jealous of her.  The applicant had never seen a doctor after being beaten.

8.The applicant last left Indonesia in October 2011 and she lost contact with her family since 2012.  She had never sought assistance from the police as she did not dare to do so.  She also did not know anything about internal relocation.

9.Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 7 August 2018 (“the Director’s Decision”).

The Director’s Decision

10.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”).

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found the applicant’s dispute with her family was a typical family dispute matter. Her claimed risk of harm was merely a speculation based on hearsay from her younger brother. In any event, the applicant had lost contact with her family for such a long time so that the grudges between them might have dissipated. Her delay in seeking non-refoulement protection also indicated that she was not in imminent danger as claimed [12]-[13].

10.Furthermore, the Director that (i) state protection would be available to her upon her return [14]-[16]; (ii) internal relocation would be viable [17]-[18] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [19]-[24], Persecution risk [25]-[29] or Torture risk [30]-[32].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board. On 21 January 2019, the Board conducted an oral hearing.

12.During the hearing, the applicant claimed that her marriage with her husband was unregistered and he had been living with his legally wedded wife. She also claimed that he last threatened to kill her in 2007 and that she had no contact with him since then [18]-[19]. Furthermore, in relation to the loan, she claimed that the loan was borrowed from a loan shark rather than a friend and the amount of money borrowed was different from what she claimed previously [21]-[22]. Finally, the applicant claimed that her parents only knew about her children in Hong Kong from her younger brother after her conversation with him in December 2018, whereas her husband knew nothing about them [24].

13.The Board found that applicant’s evidence at the hearing on all her claims was completely inconsistent with her previous claims. It was not satisfied that her claim of fear violence from her husband credible. Regarding the claimed fear from her parents, the Board considered that her claim about her parents’ attitude towards her children in Hong Kong and the loan were fabricated and untrue [28]-[32].

14.Based on such findings, the Board took the view that none of the applicant’s claims was credible [34]. It concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [36]-[43]. Her appeal was therefore dismissed and the Director’s Decision was confirmed.

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

15.The applicant has filed Form 86 on 20 June 2019 to apply for leave to apply for judicial review of the Board’s Decision.

16.In her affirmation in support of her application, the applicant asked for permission to stay in Hong Kong without raising any specific ground.

DISCUSSION

17.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).

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

19.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.”

20.For the reasons the Board has given, the Board rejected the applicant’s factual evidence in support of her claim. The applicant has raised no valid reason to challenge the Board’s Decision.

21.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

CONCLUSION

22.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 6^th day of August 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