|
HCAL 2218/2023
[2025] HKCFI 1654
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2218 of 2023
|
BETWEEN
|
| |
Yesi Kristina Ayu Indraswari |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
| |
and |
|
| |
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 To:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 11 December 2023 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 1 December 2023 dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 21 December 2022 (the “Notice”), refusing her application for non-refoulement protection.
Background
2. The Applicant is an Indonesian national, now aged 32. She had previously worked in Hong Kong as a foreign domestic helper. She last arrived in Hong Kong on 22 June 2022 to take up employment. She overstayed since 21 September 2022 after her employment was terminated. She was arrested on 18 October 2022 and referred to the Immigration Department. She then made a non-refoulement claim by written signification on 4 November 2022. In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Her claim was rejected by the Director’s Notice. Her appeal against the Notice was dismissed by the Board’s Decision. She now applies for leave to apply for judicial review of that Decision.
The Applicant’s case
3. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (the “NCF”) prepared by her with legal assistance and the record of his screening interview in the presence of her lawyer. In gist, she claims that if returned to Indonesia, she will be ill-treated or even killed by her husband for not meeting his demand for money.
4. The Applicant was born in East Java. She had nine years of education. She had been self-employed for six years and had worked as a domestic helper for about six years. She married her husband in February 2015. Her husband was a factory worker. He lost his job in April 2015. Since then she and her husband had arguments about money. He came home drunk, slapped and kicked her when he was not happy, though she was pregnant at the time. He even used a knife to threaten her. She gave birth to their daughter in November 2015.
5. In early 2018, her husband told her to work overseas to make money for her daughter’s expenses. In May 2018, she went to work in Hong Kong. For the first six months, she remitted $1,900 a month to her husband as she had to repay agency fee for arranging her employment. Thereafter, she remitted him $4,000 a month. Yet, her husband kept on asking for more money. He was angry when she said she had no extra money to send him. He did not believe her.
6. The Applicant stayed in Indonesia from May to October 2019 between contracts. During that period, her husband rarely came home. When he did, he abused her as before and threatened her. She went to work in Hong Kong in October 2019 and remitted him $4,000 per month. Her husband never called her except to ask for money.
7. In June 2022, her husband called her and told her that their daughter was sick. She took leave from her employer and returned to Indonesia. Her husband picked her up at the airport and immediately asked for money. He did not tell her anything about their daughter. She could not find her daughter at home. She and her husband had a big quarrel which ended up in a fight during which the Applicant was knocked unconscious. She never saw her husband and their daughter thereafter.
8. The Applicant returned to Hong Kong after three weeks. Her employment contract was terminated prematurely. She does not want to return to Indonesia for fear that she would be ill-treated or killed by her husband. She does not think the authorities would help her or protect her.
The finding of the Board
9. The Applicant testified before the Board. The Board accepted that her husband became angry with her after he lost his job, abused her and slapped her even when she was pregnant, but found he had never hurt her with a knife and that the injuries she suffered were never severe. The Board found inconsistencies and new allegations against her husband which were made for the first time before the Board, such as that he gambled or choked her. It also had significant concerns about her evidence relating to her last visit to Indonesia when her husband allegedly knocked her unconscious and her daughter went missing. Despite she stayed in Indonesia for three weeks after the incident, she made no enquiries about her daughter and appeared not to have looked for her at all.
10. In view of the above and other significant differences between her evidence and her testimony, the Board found the Applicant was not a truthful witness. It was not satisfied that her husband had threatened her with death, that the injuries she suffered were serious or attained the minimum level of severity and that she was genuinely in fear of being seriously harmed or killed by her husband. It considered there is not a real risk she would face serious harm for the reasons she has claimed, if returned to Indonesia. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM. It also found should there be any real risks, such risks are localised to her home area and could be mitigated by internal relocation. Hence, the Board dismissed her appeal against the decision in the Notice.
Legal principles applicable to judicial review
11. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].
Grounds for judicial review
12. After the legal principles in the precedent section had been explained to her, the Applicant said he had no complaint above errors of law, procedural unfairness or irrationality in the Decision and left it to the Court to look for such vitiating elements in the Decision for her. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and irrationality in the Decision.
Overall scrutiny
13. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is 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 a very high standard of fairness. The Board conducted a rehearing. It assessed the Applicant’s evidence carefully, tested it against common sense and inherent probability. It found her incredible as regards the core issues of her claim. It found numerous and significant inconsistencies between her evidence in the NCF and in her testimony. It did not accept she had proved she would face a real risk of proscribed harm, if refouled. It gave full reasons for its finding. It was on that basis that the Board found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law, procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
14. For the above reasons, the Applicant’s leave application is refused.
Dated the 24th day of April 2025
| |
( Seline Sze )
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 Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
|
|
|
|
|
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)).
|
|
Sent to the Applicant
on 24/04/2025
Yesi Kristina Ayu Indraswari
Applicant’s ref. no:
Nil |
|
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 24/04/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 21334
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1188/22 (Formerly RBCZ 5001074/22)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
|