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

HCAL 2114/2019

[2024] HKCFI 3050

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2114 OF 2019

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BETWEEN

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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 10 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Her application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 10 March 2019. Her application was filed on 24 July 2019, which is more than 4 months’ late. I shall deal with this issue below.

2.The applicant requested an oral hearing. She appeared before the Court on 16 October 2024.

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 39, is a national of Indonesia. She came to Hong Kong as a domestic helper in 2008. Her employment contract terminated on 31 July 2011, but she did not depart within 2 weeks. She overstayed since 15 August 2011.

5.In 2004, when she was a schoolgirl, her parents and her step-brother, Sugent Hariyanto, who learned that she had a boyfriend. She was scolded, slapped on the face and beaten on her legs and shoulders with a broom. She suffered bruises and required one month to recover. She was also locked up in a room for one week. Between this incident and her departure for Hong Kong, nothing eventful happened. In December 2010, she had an argument with her father over the phone. Since then, she has not been in touch with him or any other family members in Indonesia. She subsequently married with a Bangladeshi called Mohim and gave birth to 3 children. They had passed through a religious ceremony, but were not legally registered. She is afraid that her family may not accept Mohim and they will harm her and her children if she returns to Indonesia. She does not consider state protection will be available to her and internal relocation will be viable.

The Director’s Decision

6.The Director had rejected her torture claim. Therefore, 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 finds that: (i) the low intensity and frequency of ill-treatment from her father and Sugeng on her is indicative of small future risk of harm upon her return to Indonesia; (ii) state protection will be available to her [20]-[23]; and (iii) internal relocation is viable [24]-[27].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 20 August 2018, the Board conducted an oral hearing for her.

9.Having considered the applicant’s evidence [9]-[23], the Board came to the conclusion that if the applicant returns to Indonesia, she will not be tortured or face any problem whatsoever in Indonesia. It is only her speculation that she will not be accepted by her father and Sugent and there will be state protection for her in Indonesia. See paragraph 33 of the Board’s Decision.

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

10.The applicant has filed Form 86 dated 24 July 2019 for leave to apply for judicial review of the Board’s Decision.

11.In the affirmation in support of her application, the applicant said the Board had disregarded her dangerous situation.

DISCUSSION

12.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

13.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).

14.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board was wrong because it did not accept her evidence that the ill-treatment she received was serious.

15.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.”

16.The applicant has raised no valid ground to challenge the Board’s Decision. There is no reason for this Court to interfere with the Board’s views on the facts of the case.

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

DISPOSITION

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

The applicant appeared in person.