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

HCAL 1041/2020

[2024] HKCFI 560

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1041 of 2020

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 present 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 Decisiondated 15 May 2020 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), she appeared before the Court on 25 October 2023.

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 is a national of Indonesia.  She came to Hong Kong as a domestic helper in 1995.  Her employment contract was prematurely terminated, but she did not depart.  She overstayed since 25 January 2008 and was arrested by police.  She lodged her torture claim to the Immigration Department but was rejected on 13 June 2011.  She appealed but her appeal was dismissed by the adjudicator of the Appeal Team on 6 July 2011.  Her application for CIDTP by way of a written representation on 4 July 2018 was assessed under the USM by the Immigration Department.  She claimed that, if refouled, the villagers would beat her up and she would be treated like a slave because she had no family and she would die in the same way as her parents.

5.  Briefly, the applicant relies upon the facts that her parents died of unknown reason in 1982 when she was 9 years old.  Then she was taken care of by her aunt, who was a fruit hawker. Her aunt then sold her to another man.  This man took her to another place where he attempted to turn her to be prostitute and sexually molested her.  She escaped and lingered in the street, mingling with the street kids with no fixed of abode.  She then came across a lady who took her to her rice field.  She worked for her with cleaning cow and sheep for 2 months.  One day, a female visitor came and took her to Malang where she worked as her domestic helper without pay.  However, she was discriminated by the villagers because she had no parents.  She did not go out except to the mosque, where she was sexually molested by the guys there.  She met her uncle named Rahman, who offered to teach her how to write and read.  He advised her to go to Hong Kong for employment.  She attended an agency to pick up some Hong Kong language and came to Hong Kong as a domestic help.  In Hong Kong, she had a friend in whom she trusted her earnings.  Her friend cheated her and refused to return her earnings.  She decided to stay in Hong Kong after termination of her contract.  Details of her claim are set out in paragraph 8 of the Director’s Notice of Decision dated 11 January 2019 (“the Director’s Decision”).

The Director’s Decision

6.  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”); and

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”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that: (i) the future claim risk of harm by the villagers upon her return was assessed to be low [13]; (ii) state protection would be available to her [14]; and (iii) internal relocation would be a viable option [15].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 25 June 2019, the Board conducted an oral hearing for her with an interpreter.   

9.  Having considered the applicant’s evidence, the Board came to the conclusion below:

“68. …the Petitioner has a general fear of the people in the village where she lived in Indonesia due to her prior experience after her parents died. The Adjudicator also accepts the Petitioner fear returning to Indonesia as she has no family to help support her.

71. …the Petitioner could return to Indonesia and relocate to a large population center such as Jakarta or Surabaya, and find employment and support herself.

72. The Adjudicator does not accept that there is a real risk the people in Jakarta or Surabaya would treat the Petitioner badly or beat her up or treat her like a slave, and the Adjudicator does not accept that there is a real risk that the Petitioner would face any of the proscribed forms of harm if she did return to Indonesia and relocated to Jakarta or Surabaya.

74. … it would be reasonable and not unduly harsh for them [her] to relocate to that area, Hong Kong has no non-refoulement obligations.”

10.  For the above reasons, the Board rejected the applicant’s claim and dismissed her appeal.

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

11.  The applicant has filed Form 86 dated 29 May 2020 for leave to apply for judicial review of the Board’s Decision.

12.  The applicant submitted that the Board had disregarded her dangerous situation.  She further submitted in Court that she wants to ask for protection to stay in Hong Kong.

DISCUSSION

13.  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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  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 she wants protection and she wants to stay in Hong Kong.

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 Board had carefully considered her evidence and came to the conclusion set out in paragraph 9.  The applicant has raised no valid reason to challenge the Board’s Decision.  I find that the Board was quite entitled to form its views as it had done.

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

CONCLUSION

18.  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