SRI PURWATI MUHASIM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1977/2019

[2024] HKCFI 2537

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1977 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 28 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. She was absent at the hearing on 28 August 2024 without prior notice to the Court.  I shall deal with her application on paper.

The applicant

3.  The applicant, aged 47, is an Indonesian. She last entered Hong Kong to work as a foreign domestic helper (“FDH”)  on 13 August 2007. Her employment contract was prematurely terminated on 25 November 2007 and she overstayed since 10 December 2007.  On 19 April 2008, the applicant was convicted of overstaying and was sentenced to imprisonment of two months suspended for three years. The applicant made a non-refoulement claim on 28 September 2010. The claim was made on the basis that, if refouled, she would be harmed or even killed by the brother-in-law of her ex-husband (“the brother-in-law”)  because he accused her of bringing bad luck to him and his family.  The applicant had absconded since 10 April 2012.  On 29 June 2018, she was convicted of immigration offences and was sentenced to imprisonment of 15 months.

4.  According to the applicant, she married her ex-husband in April 1999. The brother-in-law, who was a gangster, was unhappy with their marriage because he believed that she had brought bad luck to him and his family. The brother-in-law together with his wife verbally abused and threatened the applicant almost every day.

5.  One day in around late 1999, the applicant accidentally hurt her right wrist with a knife while arguing with the brother-in-law. She did not return home after receiving treatment to her wound, but went to her friend’s place. After around a month, the brother-in-law managed to locate the applicant and took her back home. The applicant’s ex-husband was angry with her departure and slapped her upon her return.

6.  The applicant gave birth to her son in November 2000.  However, her relationship with the brother-in-law did not improve. By 2003, the applicant was so stressful that she decided to take up an employment as a FDH in Singapore. In late 2004, she returned to Indonesia, but did not dare to go home because her mother told her that the brother-in-law still held grudges against her. She stayed in the employment agency for two months until she left for Hong Kong to work as a FDH in March 2005, after which she had never returned to Indonesia.

7.  The applicant had no more contact with either her ex-husband or the brother-in-law since 2003. In 2017, her ex-husband divorced with her. Despite so, the applicant was informed by her family that they had been verbally abused by the brother-in-law because he put the blame on the applicant for the death of his wife in 2017. 

8.  The applicant was unsure of how to seek state protection regarding the problems she faced. She considered internal relocation not viable because she had been found by the brother-in-law when she relocated to her friend’s place before.

9.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 30 November 2018 (“the Director’s Decision”).

The Director’s Decisions

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”).

11.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i)  the low intensity and frequency of past ill-treatment by the brother-in-law indicated that he had no intention to seriously harm or kill the applicant [15]-[16]; (ii)  state protection would be available [17]-[21]; (iii)  internal relocation would be viable [22]-[24] and (iv)  the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [25]-[30], Persecution risk [31]-[35] or Torture risk [36]-[39].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board.  On 18 June 2019, the Board conducted an oral hearing.

13.  The Board noted that the applicant had never been harmed by the brother-in-law. The only occasion when she was injured was self-inflicted. She also showed no intention to apply for non-refoulement protection but for her arrest. In any event, the applicant had divorced with her husband in 2017, so that she should have no further connection with his family, including the brother-in-law [23]-[25].

14.  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 [8]-[19], [31]-[42]. Furthermore, state protection and internal relocation would be available according to the country of origin information [28]-[30], [43]-[47].

15.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

16.  The applicant has filed Form 86 dated 12 July 2019 for leave to apply for judicial review of the Board’s Decision.

17.  The applicant in her affirmation in support of her application has given the reasons to challenge the Board’s Decision as set out below.

a.  She was given the hearing bundle shortly before the hearing. the contents are in English and she did not have interpretation service. She was confused at the hearing. However, she had answered all questions put to her by the adjudicator.

b.  The Board had unlawfully fettered its decision by refusing her application.

c.  The adjudicator acted in a procedurally unfair manner;

d.  The Board’s Decision is unreasonable and irrational.

e.  The Board failed to meet greater care and duty owed to a self-represented claimant.

f.  The Board had relied on source of news which is not officially recognized or it is simply hearsay. It also relied on outdated cases, thus it made groundless speculation that she will be safe to return to her country.

DISCUSSION

18.  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).

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

20.  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.”

21.  Having considered the evidence, the Board finds that her case does not fall within any of the applicable risks. Having considered the Board’s reasons, I tend to agree with it.

22.  The applicant’s grounds set out in paragraph 17 are bare allegations or her opinions without any evidence in support. They are not valid grounds to challenge the Board’s Decision.

23.  The applicant has raised no valid ground to challenge the Board’s Decision.

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

DISPOSITION

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