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

HCAL 1999/2019

[2024] HKCFI 2406

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1999 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 17 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 28 August 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 42, is an Indonesian. She last arrived in Hong Kong as a visitor on 11 October 2014 and she overstayed since 11 November 2014. The applicant surrendered to the Immigration Department on 12 July 2017. She was convicted of overstaying and was sentenced to imprisonment of three months suspended for two years on 18 August 2017. The applicant made a non-refoulement claim on 29 March 2018. The claim was made on the basis that, if refouled, she would be harmed or even killed by her husband.

5.  According to the applicant, she married her husband in 2008 because her mother owed him a debt. The applicant returned to Hong Kong to continue her work as a foreign domestic helper the next day. Since then, her husband had threatened her on various occasions, either directly over the phone or indirectly through her mother. On the last two occasions the applicant received threats from her husband when she proposed a divorce to him in 2012 and shortly after she gave birth to her daughter in Hong Kong on 18 September 2017.

6.  The applicant was no longer in touch with her husband after he changed his phone number in 2015. However, she heard from her mother that her husband was still enquiring her whereabouts from time to time. The applicant was of the view she could not seek protection from the police because they were corrupt. She also considered internal relocation not viable because she lacked the necessary financial capability.

7.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 29 October 2018 (“the Director’s Decision”).

The Director’s Decision

8.  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”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the absence of past physical harm from her husband indicated a small future risk of harm upon her return to Indonesia [13]; (ii) it was the applicant’s mere speculation that her husband had continuous adverse interest against her [14]; (iii) state protection would be available [15]-[22]; (iv) internal relocation would be viable [23]-[24] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [25]-[30], Persecution risk [31]-[34] or Torture risk [35]-[37].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 2 April 2019, the Board conducted an oral hearing.

9.  The Board was fundamentally not satisfied that the applicant had provided a truthful account relating to her claimed fear of harm from her husband [66]. She gave inconsistent evidence regarding (i) the sequence of events during her return to Indonesia in 2008 when she married her husband; (ii) her telephone contact with her husband and (iii) the number of motor vehicles she owned in Indonesia [67]-[70]. In any event, the applicant’s delay in making her non-refoulement claim also showed that she had no subjective fear against the claimed threat from her husband [72]-[73].

10.  The Board found the applicant had not provided a credible account and rejected the fundamental bases of her claim [74]. The Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, Torture risk or BOR 2 and BOR 3 risk [14]-[27], [80]-[83].

11.  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

12.  The applicant has filed Form 86 dated 15 July 2020 for leave to apply for judicial review of the Board’s Decision.

13.  The applicant has raised no specific reason in her affirmation in support of her application.

DISCUSSION

14.  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).

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

16.  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.”

17.  The applicant appeared before the adjudicator and the Board found that she was not a truthful witness and it rejected her evidence. The Board was entitled to form its views after considering her evidence.

18.  The applicant has raised no valid ground to challenge the Board’s Decision.

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

DISPOSTION

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