DIAS SEPTIANA TRISTANTI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1726/2019

[2024] HKCFI 2323

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1726 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 15 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. However, she was absent at the hearing on 17 July 2024. I shall deal with her application on paper.

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 40, is an Indonesian. She last arrived in Hong Kong as a visitor on 23 April 2016 and she overstayed since 24 May 2016. The applicant surrendered to the Immigration Department on 8 June 2016. She was convicted for overstaying on 21 September 2016 and was sentenced to imprisonment for two weeks suspended for three years. The applicant made a non-refoulement claim on 2 December 2016. The claim was made on the basis that, if refouled, she would be harmed or even killed by her husband because of a family dispute.

5.  According to the applicant, she was married with a daughter and a son. Her husband was unemployed and always got into trouble with neighbours. As a result, the applicant had to borrow money to take care of the family. She later got into a relationship with a man (“her boyfriend”), who used to support her in every aspect. Subsequently, the applicant’s husband discovered her disloyalty and threatened to harm both of them. Out of fear, the applicant ran away with her boyfriend to Jakarta in July 2014, when she was impregnated to him. After two months, her boyfriend betrayed her and ran away with all her money.

6.  In mid-November 2014, the applicant’s husband came to Jakarta. He was drunk and became mad after discovering the applicant’s pregnancy. He then hit the applicant’s head with a bottle and used a knife to slash her abdomen three times. The applicant suffered bleeding at her head and three cutting wounds at her abdomen. She managed to escape by pushing her husband to the ground. The applicant did not consult a doctor for her injuries nor did she apply any medication because she had no money.

7.  Later on, the applicant moved elsewhere within Jakarta. In January 2015, she gave birth to her child, after which her mother came and took her newborn child home. In October 2015, the applicant applied to work as a foreign domestic helper in Hong Kong at an employment agency. She arrived in Hong Kong in January 2016, but her employment contract was prematurely terminated after a few months because she lacked working experience.

8.  The applicant did not maintain contact with her family and hence had no updates about her husband. She believed that she had brought shame to her family and her home village. The applicant considered internal relocation not viable because she was afraid that her husband would look for her. Meanwhile, she had no idea as to whether the police would be able to protect her.

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

The Director’s Decision

10.  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”).

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the low intensity and frequency of past ill-treatment from the applicant’s husband indicated a low future risk of harm upon her return to Indonesia [14]-[15]. The applicant’s fear of harm from her family and the community was also merely speculative [16]. Furthermore, the applicant’s delay in seeking protection was inconsistent with the behaviour of someone genuinely in fear [17].

10.  The Director further found that in any event, (i) state protection would be available to her [18]-[22]; (ii) internal relocation would be viable [23]-[27] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [29]-[34], Persecution risk [35]-[40] or Torture risk [41]-[43].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board.  On 9 January 2019, the Board conducted an oral hearing.

12.  During the hearing, the applicant told the Board that she was also indebted in Indonesia and had been threatened [20]. The applicant claimed that she owed money to the agency because she did not complete her contract. She further claimed that she had borrowed money for her husband from a loan shark and was threatened by debt collectors at the end of 2013 when she failed to repay her instalments [37]-[38].

13.  The Board was of the view that the applicant had been consistent in relation to her claims about her relationship with her husband, her extramarital relationship and the assault by her husband. She was also consistent regarding her claimed fear for returning to Indonesia [49]. The Board accepted that the applicant had an extramarital relationship and that she even had a child from that relationship. It was accepted that she ran away to Jakarta with her boyfriend, who subsequently abandoned her and took away all her money. The Board was also satisfied that the applicant’s husband later discovered her whereabouts in Jakarta and physically assaulted her [52]. However, the applicant’s claim about her fear from the debt collectors was considered not credible. In any event, the Board was of the view that the risk of harm from the debt collectors and the employment agency was low to non-existent [56]-[59].

14.  Meanwhile, upon perusing the country of origin information, the Board noted that state protection would be available to the applicant [53]-[55]. There were also particular measures to help repatriated workers, those in poverty as well as women [61]-[64]. Furthermore, internal relocation would be viable [60].

15.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [65]-[85]. 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

16.  The applicant has filed Form 86 dated 24 June 2019 for leave to apply for judicial review of the Board’s Decision.

17.  In the affirmation in support of her application, the applicant has raised the following grounds.

(a) The Board’s Decision was written in English, a language she does not understand. Nor was she provided with an interpreter.

(b) The Board’s Decision was never read to her.

(c) The Board has probably not considered that the Indonesian police are corrupt and sexist. They will not assist her, a mother of a child born out of wedlock.

DISCUSSION

11.  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).

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

13.  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.”

18.  For the reasons given, the Board concludes that the applicant is not eligible for non-refoulement claim protection.

19.  As to the applicant’s grounds to challenge the Board’s Decision, Ground a fails as she is not entitled to free interpretation at all stages of the proceedings[1]. Ground b fails as the Board has no statutory duty to read the Board’s Decision to her. Ground c also fails as it is her personal opinion only. There is no valid reason to challenge the Board’s Decision.

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

CONCLUSION

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

The applicant was not represented and did not appear.