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

HCAL 1208/2024

[2024] HKCFI 3594

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1208 of 2024

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;          or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 25 July 2024 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 17 June 2024 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 17 April 2024 refusing her application for non-refoulement protection (the “Notice”).

2.  The Applicant is an Indonesian national. She arrived in Hong Kong on 6 March 2022 to work as a foreign domestic helper. She overstayed since 7 December 2022 after her employment contract was terminated. She was arrested. On 23 February 2024, she was convicted of an offence of breach of condition of stay and sentenced to one month’s imprisonment. On 24 February 2024, she lodged a non-refoulement claim. In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Her claim was dismissed by the Director’s Notice. Her appeal against the Notice was dismissed by the Board’s Decision. She now seeks leave to apply for judicial review of that Decision.

The Applicant’s case

3.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claims that she would be harmed or killed by her ex-husband for insisting to divorce him and having so divorced him. At the hearing before the Board, she added another cause of fear which is that she will be killed by her ex-husband for planning to marry her new boyfriend.

4.  The Applicant, now aged 30, was born in Timur, Indonesia. She was married and has one son and one daughter in Malaysia. Her parents and siblings are also living in Malaysia. She had received 12 years’ formal education and had ten years’ working experience as a cashier in Indonesia and then as a foreign domestic helper in Hong Kong.

5.  She married her ex-husband in 2013. Their relationship was harmonious at the beginning, but turned sour as time went by. He was hot tempered and could be easily provoked, particularly when under the influence of alcohol. She had fights with him about twice a week. There were occasions when he was drunk that he fisted her and kicked her. She mostly suffered bruises which usually recovered in three days. The most serious injury she received was bleeding at the corner of her mouth.

6.  In June 2017, the Applicant discovered her ex-husband had a relationship with another woman. When she confronted him, he became furious and pushed her to the ground. He refused to let the Applicant leave him and banged her head against the wall several times. When the Applicant said she would divorce him, he became more emotional and assaulted her further. He even attempted to strangle her. He threatened to kill her if she insisted to divorce him. The Applicant reported the attack and threat to the police, but the police refused to help as they regarded it as a case of domestic dispute.

7.  On the following day, after her husband had left home for work, the Applicant and her children moved to her parents’ place. Her ex-husband then went to her parents’ place to urge her to return. When she refused, he threatened to kill her if she divorced him. Then, he left. To avoid her ex-husband, the Applicant moved to Malang, changed her telephone number and blocked his contact. Eventually, the Applicant came to work in Hong Kong in 2017. When she returned to Indonesia for holiday in 2019, she filed divorce against her ex-husband.

8.  At the hearing before the Board, the Applicant claimed that she had a new boyfriend who is a Hong Kong resident and they were planning to marry soon. She introduced a new cause of fear that she will be harmed or killed by her ex-husband because she was planning to marry her new boyfriend.

The finding of the Board

9.  The Board assessed the Applicant’s claim on the basis of the factual case as she asserted. While accepting that the Applicant’s ex-husband had frequently assaulted her and repeatedly threatened to kill her, the fact was he never did anything indicating that he was serious in carrying out his threat. The Board therefore found the threats were empty threats, which her ex-husband had no intention to execute. As for her new source of fear, the Board found there is no suggestion that it has anything to do with any possible ill-treatment or harm by her family or her ex-husband if she returns to Indonesia. Furthermore, as she has divorced her ex-husband, the Applicant is free to marry another legally.

10.  As for the Applicant’s allegation that the police refused to provide protection, the Board found it was only her belief that it would be useless to report to the police again. The Board found on the basis of authoritative and credible country of origin information (“COI”) that despite incompetence and ineffectiveness of the Indonesian police, the government had taken measures to improve the police in terms of efficiency and concern for human rights. The Corruption Eradication Commission was established in 2002 to fight against fraud, bribery and graft in the country. There are non-government organizations which provide protection to women suffering gender-based violence. The Board found adequate state protection is available. In view of her age and experience, it also found internal relocation feasible.

11.  Primarily for these reasons, the Board found the ill-treatment suffered by the Applicant did not fall within the meaning of ‘torture’ under section 37U(1) of the Immigration Ordinance as to entitle her to protection under the Torture Risk ground. For the same reason, it found the Applicant would not be subjected to the kind of ill-treatment contemplated under BOR 3 Risk ground. It also found there is nothing in her case that supports her claim under BOR 2 Risk ground. As the ill-treatment she suffered was on account of her domestic dispute with her ex-husband and not on account of one of the five reasons under the 1951 Convention relating to the status of Refugees and its 1967 Protocol, ie race, religion, nationality, membership of a particular social ground, or political opinion, the Board found she is not entitled to protection under Persecution Risk ground.

The legal principles applicable to judicial review

12.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

13.  The Applicant did not advance any grounds for judicial review in the Form 86. In her supporting affirmation, she only repeated her fear and risk of harm from her ex-husband. In her submission filed in response to the Court’s request, she only reiterated her danger if returned to Indonesia.

14.  Thus, the essence of the Applicant’s complaint is that she disagreed with the finding of the Board that it is safe for her to return to her home country. In effect, she is seeking to challenge the Board’s finding of fact that she would not face any real harm or risk if returned to Indonesia. That is not permissible. In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

Discussion

15.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

16.  The Board assessed the Applicant’s claim on the basis of the case as she asserted. These are the Board’s finding of facts which the Applicant could have no complaint. It was on the basis of these facts, that the Board further found she is not entitled to non-refoulement protection under any of the four applicable grounds. These are mixed finding of facts and of the law. Insofar as they are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as they are finding of the law, they are absolutely correct. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Furthermore, on the basis of authoritative and credible country of origin information, the Board is satisfied that adequate state protection and internal relocation are available to prevent or avoid the risk if it turned out to be real. These are also finding of fact which the Court on a judicial review will not interfere. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

17.  For the above reasons, leave to apply for judicial review is refused.

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

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