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

HCAL 2291/2019

[2024] HKCFI 3547

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2291 of 2019

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 the Applicant being absent in open court;

1.  The Form 86 is amended on the court’s own motion; and

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 9 August 2019, the applicant applied for leave to apply for judicial review (“Leave Application”) of the decision of the Torture Claims Appeal Board (“the Board”) dated 10 June 2019 (“Board’s Decision”). The Board had dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 15 June 2018 (“Director’s Decision”), who refused the applicant’s claim for non-refoulement protection.

2.  In Form 86, the applicant named the “Security Bureau” as the proposed respondent. As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.

3.  As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 26 November 2024. A notice of hearing with a reminder[1] of the consequence of absence dated 11 November 2024 was sent to the applicant’s last known address by ordinary post. The applicant did not turn up at the hearing. A telephone call was made to the applicant’s given telephone number, but to no avail. The information before this court shows that the said notice of hearing has not been returned through the post.

4.  In the circumstances, this court will dispose of the Leave Application according to the materials already placed before the court.

Background

5.  The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.

6.  The applicant came from Indonesia. She last entered Hong Kong in 2 March 2009 as a foreign domestic helper but when her last employment was terminated on 5 November 2009, she did not leave but instead overstayed since 20 November 2009. On 21 February 2011, the applicant was arrested for overstaying and taking up unapproved employment. She was convicted and sentenced to two months and two weeks imprisonment. On 15 April 2011, she lodged a torture claim[2], which had been rejected by the Director on 29 November 2012. The Director received the applicant’s non-refoulement claim on 4 November 2013 covering all applicable grounds other than the risk of torture – BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5] under the USM.[6] The claim was based on her fear that she would be harmed or killed by her stepfather after the latter had sexually assaulted her on two occasions in March 2007.

7.  The Director decided against the applicant’s claim on the above applicable grounds. After having taken into account all the relevant circumstances that included the findings of a low level of severity of past ill-treatment, the availability of reasonable internal relocation, and state protection, the Director found that the level of risks was low. Hence, the appeal to the Board.

8.  On 20 March 2019, the applicant attended a hearing before the Board. At the hearing, the applicant established the fact that due to her fear of the step-father and estrangement from her mother, she had lost contact with everyone in Indonesia since her departure in 2007. The Board did not accept the applicant’s explanation for the delay in the making of her initial torture claim and the refoulement claim. The Board found that the delay was inconsistent with her asserted fear of harm. The Board acknowledged that the central part of her claim was that she had nowhere to return to since the estrangement from her mother. The Board did not accept that the applicant still held a fear of her step-father, but instead found that the true reason was rather due to the fact that she had no family to return to. After the Board had found that internal relocation and state protection were available, the Board found that the applicant’s fear of risks was not well-founded.

Legal principles applicable to judicial review

9.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

10.  The applicant’s Form 86 did not contain any grounds for seeking relief. In her supporting affirmation of the same date, the applicant only stated that she was not satisfied with the Board’s decision and that it was “not fair”. There were no evidence or identification of errors in support of the intended challenge.

11.  The Board’s Decision was arrived at with the benefit of a hearing in which the applicant was able to clarify matters raised by the Board. After examining the applicant’s evidence, the Board found that the real reason for the applicant’s reluctance to return to Indonesia was not due to her claimed fear of threats from the step-father but rather due to the fact that she had no family to return to. The Board considered that there were reasonable services and state protection that would provide necessary assistance to the applicant. This, plus the Board’s finding of the availability of reasonable internal relocation was based on the Board’s consideration of the relevant country of origin information. These are findings of fact, which the court in a judicial review will not interfere with.

12.  Having rigorously examined the Director’s Decision and the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness or irrationality in the Board’s Decision. The Board had properly examined the applicant’s issue with commonsense and high standard of fairness: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Order

14.  The Form 86 is amended on the court’s own motion.

15.  The Leave Application be dismissed.

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