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

HCAL 2151/2019

[2024] HKCFI 3009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2151 OF 2019

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JUDGMENT

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 23 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. However, she was absent at the hearing on 16 October 2024. 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 47, is an Indonesian. She last arrived in Hong Kong to work as a foreign domestic helper (“FDH”) on 30 August 2011. Her employment contract was prematurely terminated on 7 March 2012 and she overstayed since 22 March 2012. The applicant was arrested by the Immigration Department on 26 June 2013 for overstaying and taking up unauthorised employment. She was sentenced to imprisonment of 3 months on 29 June 2013. On 22 December 2015, the applicant was arrested by the police for failing to report recognizance and she made a non-refoulement claim on 14 January 2016. The claim was made on the basis that, if refouled, she would be harmed or even killed by her ex-husband. 

5.According to the applicant, she married her ex-husband in around 1992. Since the birth of their son in 1994, their relationship deteriorated and her husband would frequently assault her. There was an occasion in 1995 on which the applicant was beaten until she lost consciousness. Thereafter, the applicant went to Saudi Arabia to work as a FDH between 1997 and 2005. Upon her return to Indonesia, she found out that her ex-husband had married another woman.

6.The applicant commenced her employment in Hong Kong in 2005. When she returned to Indonesia in December 2007, her ex-husband attempted to knock her down with a motorcycle. The applicant officially divorced her ex-husband in 2008 and their last conversation was in around October 2016.

7.The applicant was of the view that she could not seek protection from the police because they were corrupt. She also considered internal relocation not viable because she had no connection elsewhere and lacked the necessary financial capability.  

8.Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 24 October 2017 (“the Director’s Decision”).

The Director’s Decision

9.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”);

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”); and

d.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

10.By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that (i) the low intensity and frequency of past ill-treatment from her ex-husband indicated that he had no real intention to seriously harm or kill her [12]-[13]; (ii) there was no evidence showing that her ex-husband was as influential as she claimed [14]; (iii) state protection would be available [15]-[18] and (iv) internal relocation would be viable [19]-[20].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board. On 24 June 2019, the Board conducted an oral hearing.

12.The Board found the present case was purely a case of domestic dispute. Although the applicant’s ex-husband would resort to oral threat whenever the applicant failed to meet his demand, he had never actually carried out such threats. In any event, she could avoid the domestic violence by working overseas. Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [9]-[18], [57]-[72]. Furthermore, internal relocation would also be available [73]-[77].

13.The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

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

14.The applicant has filed Form 86 dated 29 July 2019 for leave to apply for judicial review of the Board’s Decision.

15.In the affirmation in support of her application, the applicant said she does not want to return to her country because her ex-husband may harm or kill her. She has not raised any specific reason to challenge the Board’s Decision.

DISCUSSION

16.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).

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

18.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.”

19.From the facts as alleged by the applicant, the Board’s views are reasonable and logical.

20.The applicant has raised no valid ground 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.

DISPOSITION

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

The applicant was unrepresented and did not appear.