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

HCAL 422 of 2021

[2021] HKCFI 1054

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 422 OF 2021

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 oral submissions by the Applicant 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 22 February 2021 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 an Indonesian national. She came to Hong Kong as a domestic helper on 17 September 2018.  Her contract was terminated prematurely. She overstayed and was arrested by the Immigration Department on 21 November 2019.  She lodged her non-refoulement claim with the Immigration Department on 13 June 2020.

5.  The applicant claimed that, if refouled, she would be harmed or killed by her husband because she was unable to pay off his loans with the loan sharks in Indonesia.  On various occasions in August 2012, September 2014 and September 2018, she was assaulted by her husband for the same reason.  When her job as a domestic helper in Hong Kong ended, she was in fear of being harmed or killed by her husband and this is the reason for her to remain in Hong Kong.  Details of the incidents are set out in paragraphs 15-22 of the Director’s Decision described below.

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”);

b.     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”);

c.     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

d.     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 19 October 2020 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated.  The Director found that there was no reasonable likelihood that she would face the risk of harm from her husband [33]; that state protection would be available to her [37] and that internal relocation was an option open to her [42]. Based upon the finding of the facts, the Director rejected her claim on all the risks above.

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision.  She had written a letter to the Board requesting that her appeal be dealt with on paper.  The Board acceded to her request.

9.  The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision for the reasons as set out below.

(1)   The Board accepted her evidence that her husband had threatened and assaulted the applicant. [181]

(2)   However, the Board found that the applicant had given inconsistent evidence. [182] This, coupled with her illegal activities of taking up unauthorized work in Hong Kong and possession of forged identity card, undermined her credibility in support of her claim. [182]

(3)   There was no evidence that the Indonesian government was unwilling to help her for a Convention reason. [187]

(4)   Internal relocation is an option open to her. [217 – 228]

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

10.  The applicant filed Form 86 dated 24 March 2021for leave to apply for judicial review of the Board’s Decision.

11.  In her affirmation in support of her application, the applicant did not set out any specific grounds for her application.

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.  The applicant has not set out any error of the Board in the assessment of her case in support of her application.

15.  The Court does not find any error of law or procedural unfairness in the Board’s findings. 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 her application for leave 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