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

HCAL 2084/2019

[2024] HKCFI 3427

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2084 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;          or
	consideration of the documents and the Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Madam Sriyani (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 19 July 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 12 February 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is an Indonesian. She was born on 13 March 1984 in East Java, Indonesia. She received 9 years of education and worked as a foreign domestic helper in Singapore and Hong Kong.

The Claim

3.  The Applicant relied on the following facts for her claim. She claimed that her stepfather (“S”) would harm or kill her if she were returned to Indonesia.

4.  The Applicant claimed that S became violent towards her mother in around 2005. The Applicant, her husband, her mother and S had a family meeting in around December 2005 to discuss the violent behaviours of S towards the Applicant’s mother. S explained that he received some bad influence from his friends in Jakarta and was remorseful for his past behaviours.

5.  S stopped his violent acts for five months but he attacked the Applicant’s mother again in May 2006. In July 2006, the Applicant had a dispute with S because she threw away the cannabis hidden by S. S slapped her and she sustained bruises on her face.

6.  The Applicant went to Singapore to work in 2007 and when she came back to Indonesia in 2009, she discovered that S was still violent towards her mother. The Applicant tried to protect her mother but was beaten by S regularly.

7.  The Applicant claimed that her mother was hospitalized in 2011 after S pushed her. In 2012, S attacked the Applicant and her mother about thrice a week. The Applicant’s mother then joined the program initiated by the Indonesian government and moved to Kalimantan. The Applicant sought employment in Hong Kong after her mother moved to Kalimantan. She began her first contract in Hong Kong in around 2013.

8.  The Applicant returned to Indonesia in July 2015 for holiday. She lived in her family house during this trip, where she encountered S. S asked the Applicant to give him money. She refused and S hit her face and hand, and she suffered bruises. S threatened to kill the Applicant if she did not give him money. The Applicant gave S IDR 500,000 before she left.

Procedural history

9.  The Applicant first arrived in Hong Kong in 2013 to work as a foreign domestic helper. She was last granted permission to stay until 10 April 2017 or two weeks after termination of contract, whichever was earlier. The Applicant was arrested by the Immigration Department on 5 February 2017 for taking up unapproved employment. By a written representation of 21 March 2017, the Applicant lodged the Claim.

10.  The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115;

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR; and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“Refugees Convention”).

11.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

12.  On 22 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed her supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Board and the Director as the proposed respondent and proposed interested party.

The DOI Decision

13.  The Director noted that the low intensity and low frequency of past ill-treatment from S was indicative of a small future risk of harm upon the Applicant’s return. The ill-treatment inflicted on the Applicant by S, even if true, had not attained a minimum level of severity.   

14.  There was no indication that the state was involved in, indifferent to, or had provided any form of encouragement to S in assaulting the Applicant. There was no indication that the state of Indonesia had any adverse interest on the Applicant. On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that reasonable state protection would be available to the Applicant if necessary. There were also non-government organizations in Indonesia to help women in need.

15.  The Director was of the view that the Applicant’s problem was at most a localized private assault which could be solved by seeking assistance from the Indonesian authorities or staying away from S. There were no substantial grounds for believing that S would or could mobilize huge resources to search for the Applicant throughout the country, if she were returned to Indonesia. The Director found that internal relocation would be viable. If the Applicant moved to Surabaya, Jakarta or Bali, S would have great difficulty in locating her. After considering her age and work experience, the Director found that it would not be unduly harsh to expect her to relocate and lead a normal life.

16.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

17.  The Board was of the view that the Applicant’s evidence was “barely credible” and contained numerous contradictions (§§ 50 – 67 of the Board’s Decision). She made bare assertions without objective proof. The Board was of the view that even accepting the Applicant’s case, it did not amount to a claim justifying non-refoulement protection.

18.  The Board found that even if the alleged violent incidents involving S were true, the Applicant could still live safely in other parts of Indonesia. The Board held that S lacked the means or influence to locate the Applicant outside of his local area (§73 of the Board’s Decision). The Applicant could choose to live with her husband in his village or in another city away from S.

19.  The Board held that with the Applicant’s age and work experience, she should have no difficulty in relocating to another city, such as Semarang, Surabaya, Jakarta or any major islands in Indonesia.

20.  The Board was of the further view that the Applicant might seek state protection to deal with the threats from S (§71 of the Board’s Decision).

21.  The Board found that the Applicant failed to establish that she would face the proscribed risks if she were returned to Indonesia. It also found that the Indonesian government was not involved in the alleged risk of torture or risk to her life and that she failed to establish any reason under the Refugees Convention necessary for claiming persecution risk.

22.  The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

23.  In a judicial review, the court does not step into the shoes of the decision makers.

24.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“ The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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”.

25.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

26.  The Applicant did not advance any grounds for her intended judicial review in the Form 86. In the Supporting Affirmation, the Applicant only stated that: “I would like to reject and review the decision made by Immigration Department on my case. They disregard my dangerous situation.”  She then exhibited a copy of the Board’s Decision to the Supporting Affirmation. No other supporting documents were produced.

27.  On 6 September 2024, the Director informed the court that the Applicant had been removed on 4 June 2020.

28.  A notice of hearing was sent to the Applicant on 15 October 2024 at her address in the court file notifying the Applicant of the court hearing scheduled for 30 October 2024 (“Court Hearing”). The Applicant did not attend the Court Hearing. She also made no response to a previous letter sent by the court to her on 24 September 2024. In such case, I decided to deal with this application according to papers already placed before the court.

29.  No proper ground for the intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

30.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

31.  The Board found that the Applicant’s claim was barely credible and certainly contained contradictions but even accepting that S was as described, the Board was still of the view that this did not amount to a claim justifying non-refoulement protection. The Board further found that the Applicant should also be able to live and work in Jakarta or other cities to avoid her claimed perceived risks.

32.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are finding of facts which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such finding involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable.  

Conclusion

33.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with a realistic prospect of success, I accordingly dismiss this application for leave to apply for judicial review.

34.  As the court was notified by the Director that the Applicant had been removed from Hong Kong and the Applicant had made no response to the letter sent by the court to her on 24 September 2024, the court will send a copy of this judgment and the sealed order to the Applicant at her address in the court file with another copy set to the Director and request the Director to use his best endeavor to forward them to the Applicant.

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