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

HCAL 851/2024

[2024] HKCFI 1947

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 851 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 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 Decisiondated 25 April 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 32, is a national of Indonesia. She came to Hong Kong to work as a domestic helper. Her employment contract terminated on 14 August 2022. She did not depart and overstayed since 29 August 2022. She was arrested by police on 13 June 2023. She was imprisoned for 15 months for some offences she had committed in Hong Kong. On 18 June 2023, she lodged her non-refoulement claim by written signification for the reason that, if refouled, she would be harmed or killed by her foster-brother, Deni because she refused to give him her land.

4.According to the applicant, Deni is the family’s fostered son. Her father passed away in May 2017. In his will, he bequeathed his piece to her and her brother in equal shares. Deni has nothing under the will. Deni was angry and demanded her to pass her share of the land to him. She refused. Deni threatened to kill her over the phone. She worked in Hong Kong as domestic helper. Deni was able to trace her whilst she was in Hong Kong. Deni had gone to her home in Indonesia and caused troubles to her mother and her brother. Her brother kicked him out of the house.

5.Details of her story can be found in paragraph 7 of the Director’s Notice of Decision dated 26 September 2023 (“the Director’s Decision”).

The Director’s Decision

6.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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) her claimed risks are unlikely to materialize if she returns to Indonesia [14]; (ii) state protection will be available to her upon her return [17]-[18] and (iii) internal relocation is viable [19]-[23].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 19 April 2024, the Board conducted an oral hearing for her.

9.She elected not to give evidence, but she answered the questions put to her by the adjudicator. Having considered her evidence, the Board came to the following conclusion:

“82. The appellant’s evidence that she feared harm from Deni if she were refouled to Indonesia was based only on her bare claim. Her evidence was however inconsistent and questionable, and was also based on hearsay evidence. On totality of the evidence, I did not think, even to the low standard required, that her evidence was credible. I was therefore unable to attach any weight to her evidence that she had been threatened by Deni and that she would be harmed or ill-treated if she were refouled.”

10.The Board further found that the police was not involved in this case [87] and  state protection was available to her [88]. Internal relocation is also viable [89].

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

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

12.The applicant has filed Form 86 on 29 May 2024 for leave to apply for judicial review of the Board’s Decision.

13.In her affirmation in support of her application, the applicant did not raise any specific reason to challenge the Board’s Decision.

DISCUSSION

14.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).

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

16.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.”

17.For the reasons the Board has given above, the Board rejected her evidence and dismissed her appeal.

18.The applicant has raised no valid ground to challenge the Board’s Decision. There is no reason that this Court should interfere with the Board’s decisions.

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

CONCLUSION

20.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 15^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