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

HCAL 2386/2018

[2022] HKCFI 3400

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2386 of 2018

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 9 October 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 and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.  The applicant is a national of Indonesia. She last entered Hong Kong as a foreign domestic helper on 3 February 2007 and was permitted to stay until 3 February 2009 or two weeks after termination of the employment contract, whichever was earlier. She did not depart after her employment contract was terminated and had overstayed since 4 February 2009. On 10 August 2015, she was arrested by the police for overstaying. On 27 November 2015, by way of the written signification dated 3 November 2015, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her creditor.

5.  According to the applicant, she borrowed a loan from her creditor to set up a café in 2000. Her business suffered a loss and eventually was closed down. She defaulted the loan. One day in 2001, her creditor visited her house, threatened and assaulted her. In subsequent two incidents, she was threatened and also assaulted once during the creditor’s visits. Thereafter, the applicant went to overseas employments. In 2004, she returned home but the creditor again visited her and asked for repayments. Nevertheless, her salary was insufficient to settle the loan. The creditor started to assault her family members. Out of fear, she stayed in Hong Kong for protection. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 20 February 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  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”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm upon refoulement was assessed to be low. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [14]; (ii) her problem with the creditor was private and personal in nature without state involvement [15]; (iii) her past behaviors did not suggest her perceived harm from the creditor was imminent or substantial [16]; (iv) state protection would be available to her [17]-[25]; and (v) internal relocation was a viable option [26]-[31].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 20 June 2018, the Board conducted an oral hearing for her appeal, during which she gave oral evidence through the assistance of an interpreter [19]; [18]-[34].

9.  Having considered the evidence, the Board accepted the applicant’s evidence on the past events [43]-[52]. In assessing the individual grounds, the Board found that the applicant’s alleged ill-treatments failed to attain a minimum level of severity; that the dispute was a private one without state involvement and that there was no evidence of state inaction [53]-[67]. Thus, the Board rejected the applicant’s claim on Torture risk. Further, the Board found that state protection and internal relocation were both viable alternatives [75]-[80].

10.  In light of the aforesaid findings, the Board rejected the applicant’s claim on the remaining grounds and dismissed her appeal.

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

11.  The applicant has filed Form 86 dated 29 October 2018 for leave to apply for judicial review of the Board’s Decision.

12.  In her affirmation in support of her application, the applicant said that she rejected the Board Decision as they disregarded her dangerous situation.

DISCUSSION

13.  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).

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

15.  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.”

16.  The ground in paragraph 12 above is her bare assertions without any evidence in support. There is no valid ground to challenge the Board’s Decision.

17.  The Court therefore 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.

18.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

19.  I refuse to grant leave to 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