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HCAL 166/2024
[2024] HKCFI 786
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 166 of 2024
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BETWEEN
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Sumiyana-Bt-Dasikin-Januri |
Applicant |
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and |
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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 |
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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 19 December 2023 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”), I shall deal with her application on paper.
The applicant
3. The applicant, aged 44, is an Indonesian. She last arrived in Hong Kong on 8 November 2020 to work as a foreign domestic helper. Her contract was prematurely terminated on 24 August 2021. The applicant overstayed since 16 November 2021 after her application for foreign domestic helper entry visa and visitor visa extension were refused. The applicant was arrested for breach of condition of stay on 4 January 2023 and was sentenced to imprisonment for 15 months on 13 January 2023. The applicant made a non-refoulement claim on 27 April 2023. The claim was made on the basis that, if refouled, she would be harmed or even killed by her husband because she refused to sign an approval for his remarriage.
4. According to the applicant, she married her husband in 1997. Between 2001 and 2016, the applicant worked as a foreign domestic helper and she would only go back to Indonesia between each employment. When she returned home in 2016, her neighbor told her that her husband had an affair while she was working abroad. The applicant confronted her husband after she found some suspicious messages on his phone. Although he denied having an affair, the applicant disbelieved him and their relationship started to deteriorate. On 8 November 2020, the applicant left Indonesia for Hong Kong to work as a foreign domestic helper. On 24 August 2021, the applicant resigned from her employment because she wanted to work for another employer. However, her application for a new employer was refused and she overstayed since 16 November 2021.
5. Sometime after the applicant’s resignation on 24 August 2021, her husband called her that he wanted to marry another woman and hence would like her to return to Indonesia to sign an approval for his remarriage. The applicant refused. Her husband was angry about the refusal and threatened to kill her if she returned to Indonesia. Nothing eventful happened thereafter and the applicant had not communicated with her husband since then.
6. The applicant kept contact with her mother and sister prior to her arrest, but they had no updates on her husband.
7. The applicant was of the view that she could not get any protection from the authorities and that the police could not protect her all the time. She also claimed that the police were corrupt and she had no money to bribe them. The applicant considered internal relocation within Indonesia not viable as well because she could not leave her daughters and that her husband could ask them for her whereabouts since they were still young. She also had no money or resources for relocation.
8. Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 12 July 2023 (“the Director’s Decision”).
The Director’s Decision
9. The Director considered the applicant’s claim in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. 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”);
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”).
9. By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found the applicant’s perceived harm from her husband was only her bare assertion and mere speculation, so that she did not face a real and foreseeable risk. The applicant’s lax behaviour in seeking protection also indicated that she did not face a substantial and imminent risk [13]-[16].
10. The Director further held that in any event, (i) state protection will be available to her upon her return [17]-[23]; (ii) internal relocation is viable [24]-[26] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [27]-[32], Persecution risk [33]-[37] or Torture risk [38]-[40].
The Board’s Decision
11. The applicant appealed the Director’s Decision to the Board. On 8 December 2023, the Board conducted an oral hearing.
12. Having considered the applicant’s evidence, the Board found that her evidence was consistent and had no issue on her credibility [38]. Yet, the Board was of the view that the low intensity of harm from the applicant’s husband indicated that he had no real intention to seriously harm or kill the applicant, but only to threaten her. The applicant therefore faced no real or foreseeable risk [39]-[40]. Furthermore, state protection and internal relocation were also available to her according to the country of origin information [41]-[45].
13. Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [8]-[13], [46]-[47], Persecution risk [14]-[15], [48] or Torture risk [16]-[21], [49]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.
Application for leave to apply for judicial review of the Board’s Decision
14. The applicant has filed Form 86 dated 16 January 2024 for leave to apply for judicial review of the Board’s Decision.
15. In her affirmation in support of her application, the applicant said that her life will be in danger if she returns to Indonesia.
DISCUSSION
16. 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).
17. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
18. 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.”
19. For the reasons given in paragraphs 12 and 13, supra, the Board concluded that the applicant does not have any real risk of harm if she returns to Indonesia.
20. The applicant has not been able to raise any valid reason to challenge the Board’s Decision. This Court should not interfere with the Board’s Decision.
21. The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.
CONCLUSION
22. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 21st day of March 2024
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(M.O. WONG)(Ms)
for Registrar, High Court
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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 21/3/2024
Sumiyana-Bt-Dasikin-Januri
Applicants’ 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 21/3/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 21965
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 486/23 (formerly RBCZ/5000418/23)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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