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HCAL 1743/2019
[2024] HKCFI 2013
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1743 of 2019
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Erik Febriyanti |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
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 10 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicant requested an oral hearing. She appeared before the Court on 24 June 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 40, is an Indonesian. She last arrived in Hong Kong to work as a domestic helper on 16 June 2013. Her last employment contract was terminated on 4 October 2014 as she did not report to her new employer. The applicant surrendered to the Immigration Department on 31 March 2015, but she failed to show up on 4 May 2015 as requested. The applicant was arrested by the police on 13 May 2015 and she made a non-refoulement claim on 14 May 2015. The claim was made on the basis that, if refouled, she would be harmed or even killed by her husband because of her extramarital affairs in Hong Kong.
5. According to the applicant, she married her husband in about 2006 and she gave birth to her daughter in 2008. In around 2010, the applicant started a relationship with a lesbian called Astrid, whom she knew through Facebook and worked as a domestic helper in Hong Kong. When the applicant disclosed the relationship to her mother, she became mad and deserted the applicant, as she could not accept her sexual orientation. The lesbian relationship lasted for about a year until Astrid returned to Indonesia and married a man in about 2011.
6. In about January 2015, the applicant met a Pakistani and began a relationship with him. The applicant’s husband became very angry after learning about the applicant’s extramarital affairs from his younger sister. He, via her younger sister, threatened to divorce the applicant and told her not to go back to Indonesia.
7. The applicant claimed that her husband used to be abusive and violent. He used to slap her face when he was unemployed. The applicant worried that he would inflict physical violence on her due to her extramarital affairs if she returned. The applicant did not maintain contact with anyone in Indonesia as she had been rejected by her mother and her husband. Meanwhile, the applicant believed that she could receive protection from the police and that she could avoid her husband by internal relocation.
8. During her screening interview, the applicant explained that she did not take up the new employment contract in September 2014 because she was in a relationship with a girl called Revi at that time, who did not allow her to work.
9. Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 29 November 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 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”).
11. By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the absence or low intensity and frequency of past ill-treatment from the applicant’s husband indicated a low future risk of harm upon her return to Indonesia [14]; (ii) there was no evidence showing that her family would inflict any harm to her due to her sexual orientation [16]; (iii) state protection would be available to her [17]; (iv) internal relocation would be viable [15], [18] and (v) 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
12. The applicant appealed the Director’s Decision to the Board. On 24 April 2019, the Board conducted an oral hearing.
13. During the hearing, the applicant claimed that she feared returning to Indonesia because her husband threatened to kill her after he found out from his sister that the applicant is a lesbian [49]. Meanwhile, her relationship with the Pakistani male only lasted for a month without much intimacy [59]. At the time of the hearing, the applicant claimed to be in a relationship with a girl whom she met at the detention centre [60].
14. The Board considered that the applicant was not a witness of truth and that she had fabricated claims in relation to her sexuality and her fear for returning to Indonesia [73]. The Board found the applicant’s evidence about her relationship with Astrid unconvincing [79] while her response to the Board’s questions about her sexuality was generalised and vague [81]-[82]. The applicant’s claim about her relationships with Revi and the Pakistani male was also contradictory, which the Board did not accept had ever existed [83]-[85].
15. Based on such findings, the Board rejected the applicant’s claims about (i) her sexual orientation; (ii) her claimed relationships with various people in Hong Kong which prevented her from returning to Indonesia and (iii) her husband’s abusive behaviour towards her [86]-[87].
16. 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 [12]-[31], [90]-[94]. The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.
Application for leave to apply for judicial review of the Board’s Decision
17. The applicant has filed Form 86 on 24 June 2019 to apply for leave for judicial review of the Board’s Decision.
18. In her affirmation in support of her application, the applicant only said that it will be dangerous for her to return to Indonesia without raising any specific ground.
DISCUSSION
19. 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).
20. 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 she understood the Board’s Decision and she was not suggesting that the Board was wrong. However, she wants the Court to review her case.
21. 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.”
22. For the reasons the Board has given above, the Board finds that the applicant is not a reliable witness and it rejected her evidence in support of her claim.
23. The applicant has raised no valid reason to challenge the Board’s finding of the facts.
24. She is therefore unable to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.
CONCLUSION
25. 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 2nd day of August 2024.
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(Allen LEE)
for Registrar, High Court |
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
Notes for the Applicants:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 2/8/2024
Erik Febriyanti
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 2/8/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 14828/18/12/185/I1582
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 4639/18 (Formerly RBCZ 11732/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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