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HCAL 785/2021
[2021] HKCFI 2294
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 785 of 2021
BETWEEN
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Fitriyani Fuji |
Applicant |
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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 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 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 28 April 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicant requests an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for her.
3. At the hearing, the applicant was absent without prior notice to court. She has therefore forfeited her right of being heard. Her application will be considered on paper.
The applicant
4. The applicant is a citizen of Indonesia. She came to Hong Kong on 7 December 2017 as a domestic helper. Her employment was terminated prematurely, but she remained without permission of the Director of Immigration. On 6 April 2020, she surrendered to the Immigration Department and lodged non-refoulement claim by way of written significations dated 4 May 2020 and 2 November 2020. She was released on recognizance. But she absconded and was arrested by police.
5. The applicant claimed that, if refouled, she would be harmed by her mother and her brother because of family disputes. She had a bad relationship with her mother and her brother. Her mother expected to have a son. Her mother therefore did not like her. She locked her up in a room when she was a child and hit her with a duster. Her brother bullied her with a duster too. He even burned her with lit cigarettes. Her mother and her brother had threatened to kill her. She came to work as a domestic helper as required by her mother. She had contracted tuberculosis in Hong Kong. Her mother said that she would kill her if she returned to Indonesia. Details of her story are set out in paragraph 6 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 18 January 2021 (“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 by her mother and her brother if she returned to Indonesia was assessed to be low [11]; that state protection would be available to her [12]and that internal relocation was an option open to her [17].
The Board’s Decision
8. The applicant appealed to the Board against the Director’s Decision. She appeared before the adjudicator of the Board on 15 April 2021.
9. The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision. The Board found that there was no reliable evidence to show that her mother and her brother would harm or kill her if she returned to Indonesia [41 (1)]; that she would face risk throughout Indonesia [41(2)]; that she would suffer injuries to the required severity [41(3)] and that the state was unwilling to help her for a Convention reason [41(4)]. Also there was no evidence to show that she was subjected to BOR 2 risk [67]. Her illness of tuberculosis had been cured [83] and internal relocation, though not necessary in this case, nevertheless should be an option open to her [91].
Application for leave to apply for judicial review of the Board’s Decision
10. The applicant has filed Form 86 dated 24 May 2021 to apply for leave to apply for judicial review of the Board’s Decision.
11. In her affirmation in support of her application, the applicant had enclosed the Board’s Decision without specifying any particular ground.
DISCUSSION
12. 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, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).
13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
14. 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.”
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.
Dated the 17th day of August 2021
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(K.H. LI) |
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for Registrar, High Court |
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 the Applicant’s 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 17/08/2021
Fitriyani Fuji
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 17/08/2021
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 17575/21/1/71/I1925
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 949/20 (Formerly RBCZ 10765/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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