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

HCAL 1111/2019

[2022] HKCFI 1827

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1111 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 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 29 March 2019 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 entered Hong Kong as a foreign domestic helper in November 2014 and was permitted to stay until 3 August 2015.  However, she did not depart and had overstayed since then.  On 22 August 2015, she was arrested by the police.  On 10 September and 22 September 2015 respectively, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her husband. 

5.  According to the applicant, she married her husband in 2008.  In 2014, her husband had a second marriage under the Muslim marriage customs.  After the second marriage, her husband became addicted to drugs and borrowed a large sum of debt.  Since then, her husband had become abusive towards the applicant.  As a result, in August 2014, the applicant escaped to her parents’ house.  While she was in her parents’ house, her husband demanded her return.  Feared of her husband’s constant harassment, the applicant eventually fled to Hong Kong for protection.  While in Hong Kong, she learnt that her husband continued to look for her and her parents’ house was taken by the debt collector to settle her husband’s loan.  Details of her claim are set out at paragraph 8 of the Notice of Decision dated 27 September 2018 by the Director (the “Director’s Decision”) and paragraph 21 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:

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

(2)   risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”) (“BOR 2 risk”);

(3)   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

(4)   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 way of the Director’s Decision dated 27 September 2018 (“the Director’s Decision”), the Director refused the applicant’s claim on the basis that she would not face any real risk of harm upon refoulement.  In elaboration, the Director found that (i) taking into account the past ill-treatments, it was unlikely that her husband would inflict any harm on her [13]; (ii) state protection would be available to her [14]; and (iii) internal relocation was a viable alternative [15].  

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 7 March 2019, the Board conducted an oral hearing for her appeal.

9.  Having considered all the evidence, the Board found that the applicant’s evidence was inherently contradictory.  In particular, the Board found that the applicant’s evidence on her husband’s fear for her parents contradicted with the fact that the parents would put up the house as security for her husband’s loan; that it was illogical for her husband to assault her if her parents had used their house as a mortgage for his debt; that, if her husband was afraid of her parents, it was unlikely that he would threaten them; that it was an exaggeration that her husband was well connected and could locate her everywhere [24].  In this light, the Board found that her claim lacked credibility. 

10.  Further, the Board considered the country of origin information [29]-[30] and found that state protection was available [31].  In assessing the individual ground, the Board found that she had only suffered bruises [33]; that no government officials were involved in this private dispute [34]-[35]; and that internal relocation was viable for the applicant [50]-[55]. 

11.  Thus, the Board rejected her claim and dismissed her appeal.

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

12.  The applicant has filed Form 86 dated 25 April 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In her affirmation in support of her application, the applicant enclosed a copy of the Board’s Decision and a written statement, in which she set out the facts of her case and asked the Court to consider it.

DISCUSSION

14.  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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

16.  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.”

17.  The facts of her case had been considered by the Director and Board. There is no valid grounds to challenge the Board’s Decision.

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