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HCAL 2696/2018
[2021] HKCFI 3862
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2696 of 2018
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Fatmawati |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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Putative
Respondent |
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and
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Director of Immigration |
Putative 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 5 November 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, the Director of Immigration (“the Director”) is the interested party and the relief is sought against the Board’s Decision.
The applicant
4. The applicant is an Indonesian national. On 13 March 2011, she was arrested by police for the charges of breach of condition of stay by overstaying and taking up unapproved employment. She was convicted and sentenced to two months’ imprisonment. By letters of 31 March 2011 and 8 April 2011, she raised a torture claim with the Immigration Department. By letter of 20 September 2012, she withdrew her application. By letter of 5 January 2018, she requested to re-open her torture claim. On 22 June 2018, the Director allowed her to re-open her torture claim. The Director considered her claim on all risks as set out in paragraph 6 below.
5. The applicant claimed that, if refouled, she would be harmed or killed by (i) the family members of Nipo because she had poisoned Nipo’s son causing death; and (ii) her family members in Indonesia/villagers of her locality because they disapproved her marriage with a Christian in Hong Kong.
6. Nipo was a fisherman, who had borrowed money from the applicant’s father. Her father demanded repayment, but Nipo was unable to pay. One day, Nipo stabbed her father to death. This was the story told by her mother, who heard it from her friend. Nipo’s son was fond of her and he molested her sexually. One day, he came to her house. She offered him a cup of coffee, which she laced with rat poison. He drank the coffee and was subsequent found dead at home. Nipo’s family suspected that she had poisoned the son. She fled Indonesia for Hong Kong as she feared that Nipo’s family would take revenge on her. Details of her story are set out in paragraph 8 of the Director’s Decision described below.
The Director’s Decision
7. 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”).
8. By Notice of Decision dated 12 January 2018 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found that the level of risk of her being harmed or killed by Nipo’s family members if she returned to Indonesia was assessed to be low [17]; that state protection would be available to her [27] and that internal relocation was an option open to her [29].
The Board’s Decision
9. The applicant appealed to the Board against the Director’s Decision. She had appeared before the adjudicator of the Board.
10. The Board, having considered her evidence, affirmed the Director’s Decision. The Board accepted the facts as she alleged. However, at paragraph 39 of the Board’s Decision, the adjudicator said:
“On the basis of her evidence at the hearing, where she claimed that she had no fears of returning for any other reason and did not mention or claim that her mother or other person was upset or angry with her for marrying a Christian man, the Board is not prepared to and does not accept that the Appellant has a fear of being harmed, or is at risk of being harmed, by any person in Indonesia for reasons of her marriage to a Christian man.”
11. As to the fear of the Nipo’s family taking revenge on her if she returned to Indonesia, the Board found that the state was not involved [47]; that state protection would be available to her [50] and that her fears did not fall within the context of section 37U (1) of the Ordinance [52].
12. As to BOR 3 risk, the Board accepted that she might be subject to real risk of mistreatment that would constitute BOR 3 risk. However, the applicant agreed that she might relocate herself to city such as Jakarta, her claim under this category failed [63].
13. As to Persecution risk, the Board did not accept that her fears came within the context of the Convention [68].
14. As to BOR 2 risk, the Board found that the applicant failed to establish that she might be subjected to deprivation of her life by the government of Indonesia if she returned to Indonesia [73 & 74].
Application for leave to apply for judicial review of the Board’s Decision
15. The applicant has filed Form 86 dated 28 November 2018 for leave to apply for judicial review of the Board’s Decision.
16. In her affirmation in support of her application, the applicant simply attached the hearing bundle to it without setting out any specific grounds in support of her application.
DISCUSSION
17. 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).
18. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
19. 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.”
20. The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
21. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.
CONCLUSION
22. I refuse grant her leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 24th day of December 2021
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(Chasel MAN)
for Registrar, High Court |
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 24/12/2021
Fatmawati
Applicant’s 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 24/12/2021
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10502/18/2/386/I1115
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3495/17 (T2S9) (formerly RBCZ 2002021/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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