Kiptiyah v. Torture Claims Appeal Board
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HCAL 1770/2019 [2024] HKCFI 1988 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1770 OF 2019
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Bruno Chan: The application for leave to apply for judicial review be dismissed. Observations for the Applicant: 1.The Applicant was a 49-year-old national of Indonesia who first arrived in Hong Kong in 2006 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment ended in October 2012, she did not depart and instead overstayed, and was arrested by police more than 2 ½ years later on 19 May 2015, and after the Immigration Department had issued a removal order against her on 23 July 2015, she raised a non-refoulement claim for protection on the basis that if she returned to Indonesia she would be harmed or killed by her abusive husband over their domestic disputes. She was subsequently released on recognizance pending the determination of her claim. 2.By a Notice of Decision dated 14 August 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”). 3.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her abusive husband upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from him, that there was no evidence of any real intention of her husband to seriously harm or kill her over what were essentially their domestic disputes without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives would be available in Indonesia with a large population of 260 million people spread across a vast territory of more than 1.8 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her husband to locate her. 4.On 28 August 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 24 January 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 16 May 2019 her appeal was dismissed by the Board upon finding that her claim of fear of harm from her husband that caused her to overstay in Hong Kong to seek protection was not credible and should be rejected, and that the Board also confirmed the Director’s decision. 5.On 26 June 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date to which she just attached a copy of the decision without putting forth any proper ground for her intended challenge, and before her application could be dealt with by the Court, the Immigration Department by a letter dated 12 July 2024 informed that the Applicant had passed away on 18 February 2023. 6.In the premises, it would be pointless to deal with her application to challenge the Board’s decision regarding her non-refoulement claim for protection, and accordingly I dismiss her leave application. Dated the 6th 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 |