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

HCAL 1104/2019

[2022] HKCFI 1751

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1104 of 2019

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 absent 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 Decision dated 14 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The applicant had put down the date of the Board’s Decision as 18 March 2019, which is incorrect and will be rectified below.

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent, the Director of Immigration (“the Director”) is the interested party and the date of the Board Decision sought to be reviewed judicially should be 14 March 2019 instead of 18 March 2019.

The applicant

4.  The applicant is a national of Indonesia. She entered Hong Kong on 6 December 2014 as a foreign domestic helper. However, her employment contract was terminated prematurely on 31 October 2015. She did not depart within the limitation of stay and had overstayed since 15 November 2015. On 26 May 2016, she was arrested by the police. On 29 May 2016, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her ex-husband Zaenal Fikri (“ZF”).

5.  According to the applicant, she decided to marry ZF in 2010. ZF’s family were all Christians and they demanded the applicant to convert to the same religion. Met with the applicant’s refusal and her decision to revoke the marriage, ZF assaulted and threatened to kill her. Under duress, she married ZF. During their marriage, the applicant suffered constant physical abuse. In July 2010, ZF even poured a tin of gasoline on her. In light of these abusive acts, the applicant decided to work abroad. Nevertheless, every time when she returned to Indonesia, she would receive threats from her husband and his family. Out of fear, she eventually stayed in Hong Kong for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 27 March 2018 by the Director (the “Director’s Decision”) and paragraphs 9 to 26 of the Board’s Decision described below.

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

(1)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)  risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”) (“BOR 2 risk”);

(3)  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

(4)  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 her claim on the basis that she would not face any real risk of harm upon refoulement. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[13]; (ii) no reliable evidence could support her assertion that ZF could locate her everywhere [14]; (iii) her behaviours were inconsistent with someone who was genuinely in need of protection [15]; (iv) state protection would be available to her [16]-[18] and (v) internal relocation was a viable alternative [19]-[20].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 28 February 2019, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter [6].

9.  Having considered the applicant’s evidence, the Board found that she was not a witness of truth [29]. The Board observed that the applicant had always wanted to leave ZF after she discovered his religion [30]; that her evidence of not having visible injuries was inconsistent with the allegation that she was beaten every day [31]; that it was illogical for the applicant to return to ZF’s home after the gasoline incident [32]; that her accounts on the gasoline incident were inconsistent [33]; that, despite the knowledge that ZF knew her family address, she still returned to her family after the end of her overseas employment [35]; and that, despite the threats, ZF had never intended to seriously harm or even kill the applicant [36]. In any event, the Board found that the alleged injuries sustained by the applicant did not amount to torture [50]. Further, internal relocation was a viable option for the applicant [91].

10.  As a result, the Board rejected her 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 24 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In her affirmation in support of her application, the applicant did not set out any specific ground.

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.

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 applicant has not been able to raise any valid ground in support of her application. There is no valid ground to challenge the Board’s Decision.

17.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

19.  I refuse to grant leave for 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