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

HCAL 2248/2019

[2024] HKCFI 3402

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2248 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 3 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant asked for a hearing. She appeared before the Court on 18 November 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, the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 41, is a national of Indonesia. She came to Hong Kong on 27 January 2015 and worked as a domestic helper. Her contracted was terminated and she overstayed since 20 September 2015. She was convicted of the offence and was convicted and sentenced to 3 weeks’ imprisonment, suspended for 3 years. A removal order was issued against her. By written submission dated 3 April 2017, she lodged a non-refoulement claim on the basis that, if refouled, she will be harmed or killed by her husband due to personal dispute.

5.  According to the applicant, In 2008, she worked in Singapore. She remitted money to her father-in-law to buy a piece of land for building a house thereon. In 2013, she returned to Indonesia and discovered that her husband had mortgaged the piece of land without her consent and he was flirting with a woman. Their relationship turned sour and her husband often beat her up. In 2014, he had quarrel with her and dragged her into his aunt’s house next door. On another occasion, whilst she was cooking with boiled oil, he overturned the utensil and splashed the boiled oil over her body. She did not seek medical treatment at hospital, nor did she report the matter to police. Her injury healed after about one month. For financial reason, she came to Hong Kong to work as a domestic helper in January 2015.

6.  Details of the story of the applicant can be found in paragraph 7 of the Director’s Notice of Decision dated 24 September 2018 (“the Director’s Decision”).

The Director’s Decision

7.  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”).

8.  By way of the Director’s Decision, the Director refused the applicant’s claim for the reason that there were no substantial grounds for believing that she would be in danger of being harmed or killed by her husband.

9.  The Director found that first, judging from her experiences, there would be no substantial grounds to believe that she would be subjected to the claimed future risk of harm by her husband if she returned to Indonesia. [12]; second, state protection would be available. [13]; and third, internal relocation would be viable. [14]

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. There was a hearing on 26 March 2019.

11.  Having considered the evidence, the Board dismissed her appeal on the reasons below.

“58. … Oki [the husband] is just an ordinary manual labourer from a poor family. …To aver that he will seriously harm or even kill the Appellant over domestic argument or a modest sum of money is pure theory and speculation.

70. … Taking the Appellant’s case at its highest, I do not accept that a real risk of serious harm on her return is proved.

84. Taking into account all the available materials, I am of the view that there is in force in Indonesia a comprehensive system of law and machinery for the detection, prosecution and punishment of violence (including domestic violence) as well as corruption of the police, and there is an ability and readiness to operate that machinery.

86. I do not find any cogent evidence that the State will be unwilling to afford her the requisite protection.

112. Looking at all the facts and circumstances, I find that it is no unduly harsh or unsafe for the Appellant to relocate to other parts of the Risk State. Her claim for non-refoulement protection also fails on this ground.”

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

12.  The applicant has filed Form 86 dated 7 August 2019 for leave to apply for judicial review of the Board’s Decisions.

13.  In her affirmation in support of her application, the applicant has not raised any specific reason to challenge the Board’s Decision.

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. Before me, the applicant said complained that the Board did not accept her evidence.

16.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:g

“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 has failed to raise any valid reason to challenge the Board’s Decision. The Court has no reason to interfere with the Board’s finding of the facts or its views on the evidence before it.

18.  I find that the applicant has failed to show that there is any realistic prospect in her intended application.

DISPOSITION

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