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

HCAL 2560/2018

[2022] HKCFI 469

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2560 of 2018

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 12 October 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 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 national of Indonesia.  She had been a foreign domestic helper in Hong Kong since June 2006 and her last employment contract was terminated prematurely on 13 January 2014.  She did not depart within the time limit and had overstayed.  On 6 March 2014, she lodged a non-refoulement claim.  However, she was absent from a notice briefing and therefore no action was taken for her claim.  On 9 March 2018, she requested to reopen her non-refoulement claim, which was granted.  The applicant’s claim was made on the basis that, if refouled, she would be harmed or killed by her husband.

5.  According to the applicant, ever since she married her husband, the domestic abuse started.  The applicant claimed that her husband had drinking, drug and gambling problems and he also had several extramarital affairs with different women.  Whenever the applicant argued with him, he would hit her, causing bruises over her body.  Thereafter, her husband insisted on divorcing her but she refused for the sake of their children.  Her husband then threatened to kill her if she did not sign on the documents.  Out of fear, she stayed in Hong Kong for protection.  Details of her claim are set out in paragraph 9 of the Director’s Decision and paragraphs 12 to 32 of the Board’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 a Notice of Decision dated 24 May 2018 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found the level of risk of harm from her husband upon refoulement was assessed to be low [17]-[21]; that state protection would be available to her [22]-[25] and that internal relocation was available to her [26]-[27].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  An oral hearing was held on 22 August 2018, during which the applicant gave oral testimony before the Board with the assistance of an interpreter [6].

9.  Having considered the applicant’s evidence and seeking clarifications from her during cross-examination, the Board dismissed her appeal.  The Board noticed that the centerpiece of her evidence was inconsistent, namely, whether it was her husband or the applicant insisted on the divorce [36].  The Board also rejected the applicant’s claim that her refusal to divorce her husband was because of her children [37].  It further rejected the applicant’s excuse that she did not know how to apply for protection in Hong Kong after she was arrested in 2014 [39].  Thus, the Board refused to accept the applicant as a credible witness.  The Board went on to consider the reasonable likelihood of the applicant being persecuted upon refoulement.  It found that the applicant was not on the watch list of the Indonesian government and that the alleged injuries did not amount to the level of torture [42]; [46]-[47].  Even taking the applicant’s evidence to the highest, she failed to establish the risk of being tortured by her husband [48].  For these reasons, the Board rejected her claim on all applicable grounds.  In any event, internal relocation was available to the applicant [82].    

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 14 November 2018 for leave to apply for judicial review of the Board’s Decision.

11.  In her affidavit in support of her application, the applicant did not specify any ground in support of her application.

DISCUSSION

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

13.  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).

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 Board is entitled to form its views on the evidence before it.

16.  The applicant has submitted no valid ground to challenge the Board’s Decision.

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