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HCAL 2179/2023
[2024] HKCFI 674
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2179 of 2023
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BETWEEN
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Empat Patimah Bt Oman Emed |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Respondent |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 6 December 2023 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (the “Board”) dated 20 November 2023 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 16 May 2023 (the “Notice”).
2. The Applicant had not requested an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered her application may be justly determined on paper without an oral hearing.
3. The Applicant is an Indonesian national. She last entered Hong Kong on 19 November 2018 to work as a foreign domestic helper. She was unable to renew her visa after her employment contract came to an end. She did not leave Hong Kong and became an overstayer. She was arrested on 5 January 2023 for taking up illegal employment. On 14 February 2023, she raised a non-refoulement claim. In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, 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 Decision of the Board. She now applies for leave to apply for judicial review of that Decision.
The Applicant’s case
4. 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 even killed by her ex-husband upon her return to Indonesia for divorcing him.
5. The Applicant, now aged 41 was born in Majalengka, Indonesia. She married her ex-husband in 2005 and gave birth to their daughter in 2010. Her ex-husband began developing a drinking problem in around 2014 when the Applicant was working as a domestic helper in Dubai. The Applicant also learnt that he was having an affair in Indonesia while she was away. Their relationship soured. After she returned to Indonesia, she filed divorce against him.
6. The divorce proceedings were completed in January 2018. One night, her ex-husband returned home and demanded that she slept with him. She refused. Her ex-husband strangled her and threatened to kill her. The village chief was notified of the incident and came to the scene to stop her ex-husband. He also called for the police. Two policemen arrived and made enquiries with the Applicant. The Applicant did not know if the police followed up the incident.
7. About two or three days later, her ex-husband came again and threatened to kill the Applicant and kidnap their daughter. However, he later moved to Jakarta for work. He visited the Applicant about once a month and threatened to kill her if she married another. In some of the visits, he strangled and slapped her. The Applicant sustained bruises from his attacks.
8. In June 2018, the Applicant moved to stay in an employment agency in Jatiwangi. She returned home in October 2018. When her ex-husband learnt about her return, he came and demanded reconciliation and threatened at the same time to kill her if she married another.
9. The Applicant went to work in Hong Kong and had no contact with her ex-husband since October 2018. She learnt from her daughter that her ex-husband visited her parents very often and asked for her whereabouts.
10. The Applicant was afraid that her ex-husband would kill her upon her return to Indonesia. She claims that the Indonesian police was corrupt and would not be able to protect her. She does not believe internal relocation was viable because she had no one to support her in other cities and it would be too stressful to live under the constant fear of being killed by her ex-husband.
The finding of the Board
11. The Board accepted the events as asserted by the Applicant were true and assessed her claim on the basis of the case as she asserted. However, it found her claim is not supported by objective evidence. It found on the basis of authoritative and credible country of origin information that despite there are problems about corruption and inefficiency in the Indonesian police force, there are on-going reforms against impunity and corruption. It was satisfied that there are integrated service centres providing counselling and support to victims of domestic violence. The Applicant had never informed the authorities of her fears and risks and there is no evidence that the state would be unwilling to assist her, being a victim from violence by her ex-husband. On balance, the Board found adequate state protection is available to the Applicant if required. It also found the Applicant had failed to adduce evidence showing that she lived in a country where the laws and society discriminated against her as a woman who suffered abuse from a violence ex-husband.
12. The Board accepted the Applicant’s evidence that the divorce was the root cause of her dispute with her ex-husband, that he had ill-treated and harmed her by strangling and slapping her, but the injuries were not severe. It accepted her evidence that her ex-husband had an affair with another woman and that he assaulted her while he was in a drunken state. It found, despite his extra-marital affair, her ex-husband did not want to be divorced. It found he had no intention to seriously harm or kill her and the intensity and frequency of the ill-treatment was on the low side. It found her ex-husband meant no harm to her when enquiring on her whereabouts. He just wanted to know about her well-being. The Applicant also accepted that as a possibility. The Board found the Applicant had effectively cut off ties with her ex-husband and there is no evidence that her ex-husband is interested in pursuing her.
13. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support her claims for protection under any of the four applicable grounds under the USM.
14. In respect of the Persecution Risk ground, the Board found the feared harm did not arise from one or more of the reasons set out in the 1951 Convention relating to the status of Refugees and its 1967 Protocol, ie for reason of a person’s race, religion, nationality, membership of a particular social group or political opinion.
15. In respect of BOR 3 Risk ground, the Board found the Applicant’s fear is not well-founded by reason of its finding in paragraph 12 above.
16. As for the Torture Risk ground, the Board found her ex-husband was not a public official nor acting in the capacity of the state and that the ill-treatment was not inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity or for a purpose related to the interests and/or policies of Indonesia.
17. As for BOR 2 Risk ground, the Applicant has adduced no evidence that her life is at risk by reason of genocide or that a capital sentence having been passed on her.
18. It further held that as an able-bodied adult with nine years of overseas work experience, it would not be unreasonable to expect the Applicant to relocate to other parts of Indonesia, such as Bali or Surabaya to avoid the perceived harm from her ex-husband.
19. For all these reasons, the Board dismissed her appeal against the Director’s Notice.
The legal principles applicable to judicial review
20. 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
21. The Applicant did not put forward any grounds of application for judicial review in her Form 86. In her supporting affirmation, she annexed a copy of the Decision and reiterated that she will be harmed or even killed by her ex-husband, if refouled. In effect, she is seeking to challenge the Board’s finding of fact that she had failed to prove that she would face real harm or real risk of harm protected under the four applicable grounds if returned to Indonesia. For reasons as explained in the above paragraph, this is not permissible in an application for judicial review. In the absence of specific grounds of application or grounds with sufficient particulars, the Court 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 and conclusion
22. 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. The Board assessed the Applicant’s claim wholly on the basis of the case as she asserted. It was on that basis that the Board found for reasons as stated in paragraphs 11 to 18 above that she is not entitled to protection under any of the four applicable grounds. These are finding of facts and of the law. Insofar as it is a finding of fact, the Board accepted the Applicant’s claim on the factual case as she asserted. The Applicant could have no reason to complain about the Board’s finding of these primary facts. It was on that basis that the Board further found she had failed to establish the factual basis to support her claim for non-refoulement protection under any of the four applicable grounds. This is a mixed finding of fact and of law. Many of the findings are accepted by the Applicant. Insofar as it is a finding of fact, it is 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 it is finding of the law, it is absolutely correct. The Court could detect no error of law in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
23. For the above reasons, leave to apply for judicial review of the Board’s Decision is refused.
Dated the 4th of March 2024.
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( Allen LEE )
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 4/3/2024
Empat Patimah Bt Oman Emed
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 4/3/2024
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 21819
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 314/23 (Formerly RBCZ 5000276/23)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
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