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

HCAL 77/2019

[2022] HKCFI 1012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 77 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 present 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 3 January 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), this case was heard on 7 February 2022.

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 last entered Hong Kong on 4 April 2014 as a foreign domestic helper.  Her employment contract was terminated prematurely on 3 September 2015.  However, she did not depart and had overstayed since 18 September 2015.  She surrendered to the Immigration Department on 28 October 2015.  On 17 May 2016, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her stepfather. 

5.  According to the applicant, after her mother’s remarriage, her stepfather moved in with them.  Due to difference in religious beliefs, her stepfather constantly fought with her over disagreements.  In around 1996, 1999 and early 2008, the applicant’s stepfather attacked her on two occasions and threatened her on one for her refusal to convert from Muslim to Christian.  Out of fear, she stayed in Hong Kong for protection.  Details of the applicant’s claim were set out at paragraph 6 of the Director’s Decision and paragraphs 6 to 25 of the Board’s Decision as described below.    

The Director’s Decision

6.  The Director considered the applicant’s claim 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 7 March 2018 (“the Director’s Decision”), the Director refused her claim.  The Director found that no substantial ground was present to believe that she would face real or substantial risk of harm upon refoulement because (i) the absence or low frequency and intensity of past ill-treatment indicated an unlikelihood of future risk of harm [11]-[14]; (ii) state protection would be available to her [14]-[18], and (iii) internal relocation was also an option [19]-[20].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  An oral hearing was held by the Board on 30 August 2018 for her appeal, during which the applicant answered the inquires and gave evidence to clarify her claim.  

9.  The Board observed that the applicant had not seen her stepfather for more than ten years since the last incident in 2008.  She was able to live with her mother and grandmother whenever she returned to Indonesia, which showed that she was not as feared as claimed [26]-[27].  The Board also noted that, in the alleged attacks, the applicant was able to fend off and escape from her stepfather.  On her own evidence, the Board found that her stepfather had no intention to hunt her down to kill her [28].  It further considered that there was no evidence as to the current status of her stepfather, whether he was still alive and living in the applicant’s house [30].  Thus, the Board found that the applicant’s claimed fear was remote and unreal.  In any event, internal relocation to cities like Surabaya or Jakarta and state protection were both available to the applicant [31]-[40].  For these reasons, the Board rejected the applicant’s claim and dismissed her appeal. 

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

10.  The applicant has filed Form 86 dated 9 January 2019 for leave to apply for judicial review of the Board’s Decision.

11.  In her affirmation in support of her application, the applicant said:

“… Even the Applicant requested to the Torture Claims Appeal to notify me by phone but they didn’t …. since the hearing bundle was not provided with earlier or with interpretation, I was confused in terms of what was happening…. I answered all the questions with honesty and it aggravates him that his credibility was found questionable. …the Board has significantly relied on the source of news which is not officially recognized or it is simply hearsay…. some cases which are fairly outdated … This is so unfair to give Decision of the Article 2 of HKBORO claim without even being screened by the Immigration Department. …I am unable to find any place to stay safely in his country, so I fled abroad to save life…”

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 Decisions should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant said she was free to express her view and she had nothing further to say.

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.  There is no valid reason from the applicant to challenge the Board’s Decision. If she did not have enough time to prepare for the hearing because of the late delivery of the hearing bundle, she could have asked an adjournment of her hearing for her to make her preparation.

16.  The Court of Appeal in Re: Sattar Abdul [2019] HKCA 613, 4 June 2019 held:

“13. … it is trite that the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant: see Re Zaman Muhammad [2018] HKCA 486 at [13]; and Re Gurnishan Singh [2018] HKCA 704 at [13].”

17.  The Ordinance does not provide that there must be screening for BOR2 risk assessment. The first screening for other risks had covered all the facts of the claim. The other grounds are the applicant’s comments or opinions without evidence in support of them.

18.  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.

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

CONCLUSION

20.  I refuse to grant leave for 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