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

HCAL 1912/2019

[2024] HKCFI 2511

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1912 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 27 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. She appeared before the Court on 21 August 2024.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 39, is an Indonesian. She last arrived in Hong Kong to work as a foreign domestic helper (“FDH”) on 30 September 2016. Her employment contract was prematurely terminated on 4 December 2016 and she overstayed since 19 December 2016. The applicant surrendered to the Immigration Department on 24 February 2017 and she made a non-refoulement claim on 18 July 2017 and 6 November 2017. The claim was made on the basis that, if refouled, she would be harmed or even killed by her husband because of her extramarital affairs in Hong Kong.

5.  According to the applicant, she married her husband in 2010 and she gave birth to a son in July 2011. The applicant’s husband never contributed money to the family, but spent his money on drinking, gambling and going out with his ex-girlfriend. He would always ask money from the applicant and her family and if he failed to get money from them, he would abuse their son. In 2015, the applicant’s husband mortgaged their house to a bank to obtain a loan. In the end of October 2015, staff members from the bank asked for loan repayment. Her husband then assaulted the applicant and blamed her for not giving him money. The applicant’s right ear was injured and there were bruises over her body. She however did not seek any medical treatment.

6.  In February 2016, the applicant came to Hong Kong to work as a FDH. She never sent any money to her husband despite being threatened by him. In October 2016, she came to know a Pakistani man while in Hong Kong and they started dating after two months. Subsequently, the applicant’s boyfriend posted their photograph on Facebook. The applicant’s husband threatened to kill the applicant and harm her family after he saw the photograph. His family also threatened to use black magic against the applicant.

7.  In December 2016, the applicant started cohabiting with her boyfriend. In February 2017, the bank took over the applicant’s house and her family moved to the house of her aunt. On 7 April 2017, the applicant found herself pregnant. When her husband discovered her pregnancy, he threatened the applicant’s mother that he would kill the applicant upon her return. He also took away the marriage certificate so that the applicant could not process for a divorce. Meanwhile, the applicant’s boyfriend had left her for good when she was four months pregnant. On 20 November 2017, the applicant gave birth to her son in Hong Kong.

8.  The applicant was of the view that the police could not provide sufficient assistance to her because they would not be able to offer her round the clock protection. She also considered internal relocation not viable because she had no connection elsewhere within Indonesia.

9.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 1 August 2018 (“the Director’s Decision”).

The Director’s Decisions

10.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c.  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”); and

d.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture e risk”).

11.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the low frequency of past ill-treatment from the applicant’s husband indicated a low future risk of harm upon her return to Indonesia [14]; (ii) state protection would be available [16]-[17]; (iii) internal relocation would be viable [15], [18] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [19]-[24], Persecution risk [25]-[28] or Torture risk [29]- [31].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board. On 6 March 2019, the Board conducted an oral hearing.

13.  Having considered the applicant’s evidence, the Board was not satisfied that her claims were truthful [74]. The Board did not accept the applicant’s claim that her husband had mortgaged the house to the bank or that the bank seized the house due to non-payment given the lack of documentary proof [75]-[78]. Due to the absence of medical documents and police report about the claimed attacks and injuries, the Board also rejected the applicant’s claims that she and her son had been assaulted by her husband because she did not give him money. It was further not accepted that the applicant was threatened by her husband or his family [79]-[83].

14.  Meanwhile, the Board accepted the applicant’s involvement with her Pakistani boyfriend and that she later fell pregnant to him [87]-[88]. However, the Board was not satisfied that her Pakistani boyfriend would have posted a photograph of himself and the applicant on Facebook, so that the subsequent threat by the applicant’s husband and his family after they saw the photograph was rejected [89]. In any event, the Board considered internal relocation a viable option for the applicant according to the country of origin information [93].

15.  In conclusion, the Board did not accept that the applicant’s husband or his family would harm her for any of the reasons she had claimed. Although the applicant might have subjective fear about her husband for being pregnant to another man, the Board was satisfied that she could avoid the harm by relocation [94].

16.  Based on such findings, the Board found the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [96]-[116]. The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

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

17.  The applicant has filed Form 86 dated 8 July 2019 for leave to apply for judicial review of the Board’s Decision.

18.  The applicant has raised no specific ground to challenge the Board’s Decision in her affirmation in support of his application.

DISCUSSION

19.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

20.  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 the Board was not wrong. But she asked the Court to review the Board’s Decision anyway.

21.  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.”

22.  From the Board’s Decision, the adjudicator had asked the applicant quite a lot of questions and had allowed her to give explanation to the issues she had raised with her. In my view, the Board was entitled to come to its views in paragraph 16.

23.  The applicant has raised no valid ground to challenge the Board’s Decision.

24.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

25.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.