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

HCAL 511/2019

[2021] HKCFI 3383

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 511 of 2019

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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;

Order by Deputy High Court Judge K.W. Lung:

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 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

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 and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.  The applicant is a citizen of Indonesia.  She had worked as a domestic helper in Hong Kong since 2006.  Her last employment contract was prematurely terminated on 3 April 2015.  On 18 May 2015, she was arrested by the police for overstaying.  On 26 May 2015, she lodged a non-refoulement claim.

5.  The applicant claimed that, if refouled, she would be harmed or killed by her husband Tugiran. According to the applicant, her husband became abusive after marriage.  In 2010, she met her boyfriend in Hong Kong.  When she returned to Indonesia in 2014, she brought her mobile phone containing intimate photos.  Her husband found out about her relationship and started beating her for half an hour with bare hands.  The applicant sustained bruises and it took her a week to recover.  Although she and her husband lived together for around one and a half month in 2015, the situation remained the same as her husband beat her every single day.  Out of fear, she stayed in Hong Kong for protection.  Details of her story are set out in paragraph 6 of the Director’s Decision described below and paragraph 19 of the Board’s Decision.

The Director’s Decision

6.  The Director considered her application in relation to the following risks:

a.   risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

a.   Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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”); and

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”).

7.  By Notice of Decision dated 9 July 2018 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found that the level of risk of her being harmed or killed by her husband was assessed to be low [12]-[15]; that state protection would be available to her [16]; and that internal relocation was an option open to her [17]-[23].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  She appeared before the Board on 27 December 2018, during which she answered the Board’s inquiries. 

9.  The Board found that her claim was unmeritorious: according to the applicant’s own evidence, she only sustained bruises from her husband.  There were no serious injuries.  Her husband’s death threats were only empty threats.  Also, she did not report her husband’s assaults to the police.  Further, she did not seek protection immediately arriving in Hong Kong and her claimed lack of knowledge about the non-refoulement claim was unacceptable since her boyfriend was a non-refoulement claimant.  She only lodged one because she was arrested by the police [22].  The Board also found that state protection was available in Indonesia and that internal relocation was a feasible option for her as the applicant agreed that she could relocate to Jakarta or Bali [27]; [42]-[45]. As a result, the Board rejected her claim on all applicable grounds and dismissed her appeal [28]-[41]. 

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

10. The applicant has filed Form 86 dated 22 February 2019 for leave to apply for judicial review of the Board’s Decision.

11. In her affirmation in support of her application, the applicant had set out the following grounds:

(1)  the adjudicator had underrated her injury and she had bruises over her body;

(2)  the adjudicator said her husband’s threat is empty threat, but what if he really kills her;

(3)  police cannot save her;

(4)  the adjudicator said that the torture was a private matter, but her husband is an influential political person and he always pays money to political parties;

(5)  if she returns to Indonesia, she will be killed by her husband and police there will not help her because her husband is an influential man politically;

(6)  the adjudicator’s description of her injuries of “just bruises” is a derogative term without respect for her;

(7)  relocation is not possible as her husband is an influential man on the police in Indonesia.

DISCUSSION

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

13. 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.

14. Her grounds above do not assist her application. The adjudicator’s description of her injuries is not an underrating or disrespect for her. The description is used as a comparison of her injuries with those under the relevant statutory provisions and the Convention, which require very high threshold of genuine and substantial risk of bodily injury or intense physical or mental suffering. See the Court of Final Appeal’s rulings in Ubamaka Edward Wilson v Secretary for Security & Another (2012) 15 HKCFAR 743, §§172 and 173. The applicant may consider that her husband is a very influential man politically. Obviously, there is no evidence to show that her husband is above the law in Indonesia.

15. 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.

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

CONCLUSION

17. 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