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

HCAL 679/2019

[2022] HKCFI 2064

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 679 of 2019

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;

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 6 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The applicant had put down the date of the Board’s Decision as 11 June, 2018, which is a mistake and will be rectified below.

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 Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board, the Director of Immigration is the interested party and the date of the Board’s Decision is 6 March 2019.

The applicant

4.  The applicant is a national of Indonesia. She entered Hong Kong on 12 February 2015 as a foreign domestic helper. However, her employment contract was terminated prematurely on 18 February 2015. She did not leave within her limitation of stay and had overstayed since 5 March 2015. On 15 July 2017, she was arrested by the police for overstaying. On 17 July 2017, she lodged her non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her stepfather, her fiancé Suyatno, and Suyatno’s father.

5.  According to the applicant, she followed her stepfather’s arrangement and married Suyatno, the son of her family’s creditor in 2014. While she was in Hong Kong, she met her girlfriend Desi and confessed to Suyatno about her sexual orientation. Thereafter, things went out of control. Both Suyatno and her stepfather were furious and threatened her. In addition, Suyatno’s father also started to demand her family for the repayments of the loan. Out of fear, she stayed in Hong Kong for protection. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 30 May 2018 by the Director (the “Director’s Decision”) and paragraphs 29 to 40 of the Board’s Decision.

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

(1)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)  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”);

(3)  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

(4)  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 way of the Director’s Decision, the Director dismissed the applicant’s claim on the basis that she would not face any real or substantial risk of harm upon refoulement. In elaboration, the Director found that (i) her alleged enemies had no real intention to cause serious harm or even kill her [12]; (ii) her alleged dispute was private in nature without state involvement and her delay in seeking international protection showed that she would not face imminent danger if refouled [13]; (iii) state protection would be available to her [14]-[16]; and (iv) internal relocation was also a viable alternative [17]-[18].

The Board’s Decision

8.  The applicant appealed Director’s Decision to the Board. On 26 November 2018, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter [5].

9.  Having considered the evidence, the Board concluded that the applicant was not a witness of truth [44]. In particular, the applicant was inconsistent as to who was the creditor [45]. She gave little details as to the loan [46]. She also gave vague accounts about her engagement with Suyatno [47]. Further, she was inconsistent about the threatening phone calls made by her stepfather and her fiancé [48]. In addition, the Board was not persuaded by the applicant’s claim in relation to her sexual orientation as she was unable to describe how discovering she was a lesbian affected her, which, coupled with other evidence such as there being no photographs of her with her partner and that she was unable to tell the adjudicator how their friendship developed into intimacy, rendered her evidence not believable [51 & 52].

10.  In light of the aforesaid findings, the Board rejected the applicant’s claim and dismissed her appeal.  

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

11.  The applicant filed Form 86 dated 11 March 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In her affirmation in support of her application, the applicant said she did not want to go back to Indonesia because she feared that her second beloved would harm her as he knew about her girlfriend here. He would kill her.

DISCUSSION

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

14.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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).

15.  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.”

16.  The Board had considered the merits of the applicant’s case and given reasons in support of its conclusion. The Board rejected her evidence on the facts of her case, which means she does not have any factual basis in support of her claim. Her grounds in support of her application do not assist her application.

17.  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.

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

CONCLUSION

19.  I refuse to grant leave to 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