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

HCAL 1829/2019

[2024] HKCFI 2378

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1829 OF 2019

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 18 June 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.  I shall deal with her application on paper.

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 42, is an Indonesian.  She last arrived in Hong Kong on 19 May 2014 to work as a foreign domestic helper (“FDH”).  Her employment contract was prematurely terminated on 29 July 2014 and she overstayed since 13 August 2014.  The applicant surrendered to the Immigration Department on 10 November 2015 and made a non-refoulement claim on 4 February 2016.  The claim was made on the basis that, if refouled, she would be harmed or even killed by her stepfather because she failed to send money back to him.

5.  According to the applicant, her mother married her stepfather in 1989.  Since around 1991, her stepfather always abused her verbally and physically.  As a result, the applicant went to stay with her maternal grandmother next door, but she would come back to her family house during daytime to visit her mother, who was suffering from breast cancer.  Her mother eventually passed away in 1996 and the applicant continued staying at her grandmother’s home.  Yet, the applicant’s stepfather would often come and force her to return to the family house to do housework.

6.  In 1997, the applicant went to Jakarta to work as a domestic helper, during which her stepfather would call her about three times a month demanding money because he needed to settle his gambling debts.  In 1998, the applicant’s stepfather continued demanding money from her after she went to Singapore to work as a FDH.  The applicant returned to Indonesia in 2000 upon completion of her employment contract.  On one occasion, she met her stepfather when she was about to take her grandmother to the hospital for the eye surgery.  He demanded money from the applicant and tried to harm her, but was stopped by some neighbours.  The applicant left for Jakarta after her grandmother was discharged from the hospital 4-5 days later.  She stayed at an employment agency and thereafter left for Taiwan to work.  The applicant’s stepfather called her several times while she was in Taiwan, for which she always hung up on him.

7.  The applicant returned to Indonesia in 2002 upon completion of her contract.  Her stepfather found her out at her grandmother’s house and came demanding money, during which he vandalised some furniture.  To save herself from harm, the applicant reluctantly agreed paying her stepfather 500,000 Rupiahs and he promised to stop harassing her upon receiving two million Rupiahs.  Around two months later, the applicant left for Malaysia.  She also received calls from her stepfather while in Malaysia, but she immediately hung up the phone.

8.  The applicant returned to Indonesia in late 2006.  When she visited her grandmother, her stepfather came to demand money from her, but to no avail.  He then slapped the applicant on her face and pushed her onto the ground, resulting her to suffer from bruises and redness.  On the following day, the applicant had an intense argument with her stepfather as the latter wanted to sell the family home.  Her stepfather also threatened to kill her the next time if she returned to Indonesia without giving him money.

9.  Thereafter, the applicant stayed at employment agencies in Cilacap and Jakarta for eight months.  In mid-2007, the applicant came to Hong Kong to work as a FDH.  She would remit money regularly to her stepfather, but he would always ask for more.  In 2008, the applicant learnt from her neighbour that her grandmother had passed away.  The applicant returned to Indonesia in 2009 upon completion of her contact to arrange her grandmother’s burial.  When the applicant returned to her hometown to visit her grandmother’s graveyard, she was intercepted by her stepfather who chased her with a long knife.  She managed to escape and returned to Hong Kong to work as a FDH on 17 October 2009.

10.  In early November 2009, the applicant’s stepfather called the applicant, telling her that he had sold the family home, but still needed more money to repay his gambling debts.  He then threatened to kill the applicant if she returned to Indonesia without money.  Since then, the applicant changed her telephone number, after which her stepfather was unable to contact her.

11.  The applicant did not seek assistance from the police because they were corrupt and she could not afford bribing them.  She also considered internal relocation not viable because she had no financial means to relocate elsewhere and she believed that her stepfather would be able to trace her whereabouts anywhere within Indonesia. 

12.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 28 February 2018 (“the Director’s Decision”).

The Director’s Decision

13.  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 risk”).

14.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that (i) the low intensity and frequency of past ill-treatment from the applicant’s stepfather indicated that he had no real intention to seriously harm or kill the applicant, so that the risk of harm was not as imminent as she claimed [14]-[16]; (ii) there was no evidence showing that her stepfather had the means to locate her anywhere within Indonesia [17]; (iii) the conduct of the applicant was inconsistent with someone genuinely in fear [18]; (iv) state protection would be available [19]-[26]; (v) internal relocation would be viable [27]-[28] and (vi) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [29]-[34], Persecution risk [35]-[40] or Torture risk [41]-[44].

The Board’s Decision

15.  The applicant appealed the Director’s Decision to the Board.  On 26 March 2019, the Board conducted an oral hearing.

16.  The Board considered that the pain or suffering by the applicant had not reached the requisite degree of severity [64] and there was no indication of involvement by public officials in the matter [68]-[69].  Meanwhile, the Board noted that the applicant was inconsistent regarding the remission of money to her stepfather [85] and gave the view that she was not a credible witness [90].

17.  The Board found that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [43]-[58], [61], [130]-[145].  Furthermore, state protection and internal relocation would be available according to the country of origin information [92]-[129].

18.  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

19.  The applicant has filed Form 86 dated 2 July 2019 for leave to apply for judicial review of the Board’s Decision.

20.  The applicant has raised the ground below in support of her application:

“I would like to reject and review the decision made by Immigration Department in my case. They disregard my dangerous situation.”

DISCUSSION

21.  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).

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

23.  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.”

24.  For the reasons given, the Board had doubts about the applicant’s evidence.  Its conclusion that the applicant’s story does not meet the requirements of any of the applicable risks is logical and reasonable.  This Court has no reason to interfere with the Board’s decisions.

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

DISPOSITION

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