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HCAL 2092/2023
[2024] HKCFI 394
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2092 of 2023
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BETWEEN
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Febrianti Falentina Tumilantow |
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 22 September 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 26, is a national of Indonesia. She last entered Hong Kong on 6 November 2019 to work as a foreign domestic helper. Her employment contract was pre-maturely terminated on 19 January 2022 and she overstayed since 3 February 2022. She was arrested by the Immigration Department on 9 November 2022. On 11 November 2022, she was convicted of breach of condition of stay and was sentenced to imprisonment for 15 months. The applicant made a non-refoulement claim by written significations on 28 November 2022 and 20 December 2022.
4. According to the applicant, her parents arranged her to marry Indra Alenaung (“Indra”) in early 2017. She did not oppose to the proposal originally. However, she soon realised that Indra was short tempered and violent. He slapped her the first time in February 2017 (“1st assault”) and the second time in August 2017 (“2nd assault”). Thereafter he continued slapping her when they had arguments. By November 2018, the applicant could no longer tolerate the violence by Indra anymore and she told her parents about the arguments and the assault by Indra. They persuaded her to be patient and told Indra’s parents about her concern. Although Indra apologised, he later came to the applicant and threatened to kill her (including using black magic) if she ended their relationship or refused to marry him.
5. Upon the advice from her parents, the applicant kept seeing Indra, who continued to slap her whenever they had disagreements. When she last saw Indra in February 2019, he was still repeating his death threats. She thus decided to avoid Indra by leaving Indonesia and working overseas. The applicant received training with the employment agency for three months before leaving Indonesia for Hong Kong in November 2019. While she was in the training centre in October 2019, Indra threatened to kill her and her parents by phone if she left him without his permission.
6. The applicant maintained contact with her parents while she was in Hong Kong. They told her that Indra was asking for her whereabouts and they asked her to return to Indonesia to marry Indra.
7. The applicant was in fear of being killed by Indra after returning to Indonesia because she refused to marry him. She was of the view that she could not seek protection from the police because they would not take action on domestic dispute and she had no money to bribe them. She also thought internal relocation within Indonesia not viable as she did not have money to move anywhere else and have no friends or relatives elsewhere.
8. Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 17 March 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”).
10. By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found there was no substantive evidence to show that the applicant faced a real and substantial risk of being harmed by Indra upon her return to the Indonesia given Indra’s low intention to kill her and his lack of capability to locate her throughout the country. Furthermore, the applicant’s failure to seek assistance at her earliest opportunity was also inconsistent with the bahaviour of a person genuinely in fear for life [11]-[14]. In any event, the Director was of the view that (i) state protection will be available to her upon her return [15]-[20]; (ii) internal relocation is viable [21]-[22] and (iii) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [23]-[28], Persecution risk [29]-[33] and Torture risk [34]-[37].
The Board’s Decision
11. The applicant appealed the Director’s Decision to the Board. On 25 July 2023, the Board conducted an oral hearing.
12. Having considered the applicant’s evidence, the Board found there were significant inconsistencies of her own evidence, particularly in relation to (i) the time when she started dating Indra; (ii) the circumstances of the 1st and 2nd assaults; (iii) the time when she told her parents about Indra’s assaults and (iv) the last time she saw Indra. The Board also considered the applicant’s significant delay in lodging the non-refoulement application undermined her credibility and was not convinced that Indra threatened her by phone while she was at the training centre in October 2019 [41]-[48]. In any event, the applicant’s case failed to meet any of the requirement under Persecution risk [52]-[57], Torture risk [58]-[63] or BOR 2 and BOR 3 risk [64]-[70]. Furthermore, internal relocation was also available to the applicant [49].
13. For the above reasons, the Board 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 23 November 2023 for leave to apply for judicial review of the Board’s Decision.
15. In the affidavit in support of her application, the applicant said that her life is still in danger.
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 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).
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. Having considered the applicant’s evidence, the Board came to its conclusion that her evidence is not reliable, she has no risk of returning to Indonesia and internal relocation is available to her. The applicant has failed to raise any viable reason to challenge the Board’s conclusion.
20. The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review.
CONCLUSION
21. 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 20th day of February 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 20/2/2024
Febrianti Falentina Tumilantow
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 20/2/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 21624
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 58/22 (Formerly RBCZ 5000007/23)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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