MUKHAYATI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 149/2022

[2022] HKCFI 1444

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 149 of 2022

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 Applicant being absent in open court;

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 11 January 2022 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

The applicant

3.  The applicant is a national of Indonesia. She entered Hong Kong on 22 June 2018 as a foreign domestic helper. Her limitation of stay ended on 1 November 2018. However, she did not depart and had overstayed since 2 November 2018. On 18 August 2021, she was arrested by the police. On 27 September 2021, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her ex-husband Sumadi.

4.  In brevity, the applicant claimed that, since her marriage with Sumadi in 2000, there had been ups and downs. She last met Sumadi in April 2017. Thereafter, Sumadi filed a divorce petition and took their son away with him. He later remarried. In 2019, when she was talking to her son via WhatsApp, Sumadi took over the phone and threatened to kill her if she refused to remarry him. Out of fear, she stayed in Hong Kong for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 30 November 2021 by the Director (the “Director’s Decision”) and paragraphs 27 to 38 of the Board’s Decision described below.

The Director’s Decision

5.  The Director considered the applicant’s claim in relation to the following risks:

(1)  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)  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”);

(3)  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

(4)  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”).

6.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on the basis that the level of risk of harm upon her refoulement was assessed to be low. In elaboration, the Director found that (i) Sumadi had shown no real intention to harm or even kill her [11]-[12]; (ii) he did not have the resources to locate her everywhere in Indonesia [13]; (iii) her claimed fear from the criminals was unsubstantiated [14]; (iv) state protection would be available to her [16]-[21] and (v) internal relocation was a viable alternative [22]-[24].

The Board’s Decision

7.  The applicant appealed the Director’s Decision to the Board. On 4 January 2022, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter [6].

8.  The Board noticed that the basis of the applicant’s non-refoulement claim was on the risk of harm from her ex-husband. Nevertheless, in her notice of appeal/petition, the applicant further added that she feared to live alone in Indonesia as she had no means [43]-[44]. The Board found that there was no consistent pattern of gross, flagrant or mass violations of human rights in Indonesia and thus there was no evidence suggesting that the applicant would face the proscribed harm just by living alone in her home country [45].

9.  Insofar as the fear from Sumadi was concerned, the Board accepted the evidence on her marriage and Sumadi’s subsequent unfaithful and threatening behaviors [47]. However, the Board noted that, on the applicant’s evidence, Sumadi had never physically assaulted her nor had she ever witnessed him assaulting anyone else [49]. It therefore found that the applicant’s claimed fear was mere speculation and, as time lapsed, Sumadi’s conducts suggested that he had little interest in the applicant [50]-[51]. Further, the Board also concluded that the country of origin information did not support the applicant’s assertion that she would face any violence given her vulnerabilities in her home country [52]-[59]. As a result, none of the applicant’s claims were substantiated.

10.  For these reasons, the Board rejected her claim and dismissed her appeal.

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

11.  The applicant filed Form 86 dated 17 February 2022 for leave to apply for judicial review of the Board’s Decision.

12.  In her affirmation in support of her application, the applicant said she wanted to stay in Hong Kong as her life would be at risk if she returned to Indonesia.

DISCUSSION

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

14.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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, CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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 not raised any valid ground in support of her application.

17.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

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

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