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

HCAL 1924/2018

[2020] HKCFI 1754

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1924 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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 10 September 2018 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 was amended by adding the Board as proposed respondent and replacing the Board with the Director of Immigration (“the Director”) as interesting party.

The applicant

4.  The applicant is an Indonesian national. She came to Hong Kong and worked as a domestic helper on 3 September 2012. Her employment contract was terminated prematurely, but she was permitted to stay as a visitor until 9 September 2013. She overstayed since 10 September 2013. On 29 July 2013, she gave birth to her son, who has obtained permanent residency status. She lodged her non-refoulement claim on 18 March 2014.

5.  The applicant claimed that, if refouled, she would be harmed by her family as she got pregnant with her boyfriend in Hong Kong. 

6.  In 1997, Her mother arranged a marriage for her to marry a man of 42 years old.  She refused as she was only 16.  She left home and went to her aunt’s home where she had stayed for a few years.  In 2002, she went to a training center for domestic helpers where she was trained for three months.  Then she obtained a job as a domestic helper in Hong Kong.  She had a boyfriend in Hong Kong.  She gave birth to her son on 29 July 2013.  She told her younger sister about this.  Her sister told her that the family would not agree to accept her boyfriend as he is not a Muslim and her son, who was born out of wedlock. She said that the villagers would not accept her too.  Her boyfriend has taken ill, bursting of his vein and fading of his memory.  He is unable to look after her.

The Director’s Decision

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

a.risk of torture under Part VIIC 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”).

8.  By Notice of Decision dated 7 April 2017 (“the Director’s Decision”), the Director refused her claim for the reason that there were no substantial grounds for believing that her life would be threatened upon her return to Indonesia [14]; that state protection was available to her [23] and that internal relocation was an option open to her [24].

The Board’s Decision

9.  The applicant appealed to the Board against the Director’s Decision and attended the hearing on 8 May 2018.

10.  By the Board’s Decision, the Board rejected her appeal and confirmed the Director’s Decision.

11.  The Board considered the applicant’s evidence and for the reasons [50-78], found that she would not be harmed by her family or the villagers and that there was no real chance that she would be subjected to any of the risks as she claimed [79-80] and that also relocation is an option open to her if she returned to Indonesia [81] and state protection was available to her [87].

Application for leave to apply for judicial review

12.  The applicant filed Form 86 on 13 September 2018 for leave to apply for judicial review of the Board’s Decision.

13.  In her affirmation in support of her application, she said that she did not want to go back and she wanted to be with her son, who is five years old. Her family and her villagers would forsake her.

DISCUSSION

14.  As the Board did not accept that she was under any real risk if she returned to Indonesia, her claim will fail.

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.  There is nothing to show that the Board had committed any error in its finding of the facts or in its application of the law to her case.

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

CONCLUSION

18.  Since the applicant’s application for judicial review of the Board’s Decision has no reasonable prospect of success, 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

Form CALL-1