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HCAL 1052/2019
[2022] HKCFI 1574
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No.1052 of 2019
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Suryaningsih |
1st Applicant |
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Suryaningsih Serena Amora |
2nd Applicant |
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and |
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Torture Claims Appeal Board/ |
Putative Respondent |
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Non-refoulement Claims Petition Office |
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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 applicants are mother and daughter born in Hong Kong on 23 May 2014, a minor in this case.
2. The applicants jointly apply for leave to apply for judicial review of the Decision dated 17 January 2019, which cannot be located on the file and from the record, the correct date should be the one dated 11 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). This will be rectified below. The 2nd applicant’s case relies upon the facts of the 1st applicant.
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 sought is the Board’s Decision.
The applicants
4. The 1st applicant is a citizen of Indonesia. She entered Hong Kong on 6 January 2012 as a domestic helper. Her employment was prematurely terminated on 13 August 2012. She should leave Hong Kong within 14 days. She overstayed. She was arrested by police on 26 October 2012. On 9 August 2013, her torture claim was rejected. On 17 September 2013, she lodged claim for Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by way of a written signification. Her application was processed under the applicable grounds of the unified screening mechanism other than Torture risk, the details of which are set out in paragraph 6 below.
5. The 1st applicant claimed that, if refouled, she and the 2nd applicant would be harmed or killed by Mr. Sarmin, the creditor due to default in repayment of loan. Besides, she would also be expelled, harmed or killed by her family because the 2nd applicant was born out of wedlock.
6. The applicant had had unhappy experience at the early stage of her life. In 2009, whilst she was working in Hong Kong, she was raped by a Chinese man under the influence of drug administered by her friend. She was pregnant. She left her employment and returned to Indonesia. Her mother was angry with her and threatened to kill her and her baby. At that time, she was already married. Her husband took her to Jakarta. She then came to know that her husband had another woman and they continued with their relationship. Her husband treated her badly. She had to borrow 2 million Indonesian Rupees from Mr. Sarmin for delivery of her baby. But his husband took away her money. Her friend helped her on the delivery fee. She divorced her husband. The creditor demanded repayment of the loan and proposed that she married him for repayment of the loan. She refused. She went to Hong Kong and worked as a domestic helper. Whilst in Hong Kong, she met another man, a Nigerian, with whom she had a baby, the 2nd applicant. This man subsequently left her for another woman. She is unwilling to return to Indonesia. Details of her story are set out in paragraph 12 of the Director’s Decision described below.
The Director’s Decision
7. The Director considered the 1st applicant’s application in relation to the following risks:
a. 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”);
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”); and
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”).
8. For the 2nd applicant, the Director also considered the Torture risk[1] on top of the other risks above.
9. By Notice of Decision dated 28 December 2017 (“the Director’s Decision”), the Director refused their claim for the reason that their claim was not substantiated. The Director found that there were no substantial grounds for believing that there would be any real and substantial risk of the applicants being harmed or killed by the 1st applicant’s creditor or her family [22]. Neither the treatment by the creditor nor by the treatment by the 1st applicant’s mother, either physical or mental, had attained a minimum level of severity that non-refoulement protection was warranted [26-28]. Her assertion that she and her daughter would be harmed or killed by the creditor or her family upon return was her mere speculation without corroborative evidence to support [28]. State protection would be available to her and her daughter [29-32]. Also, there are non-government organizations in Indonesia which will provide service to her and her daughter [33]. Finally, internal relocation is an option open to her [34-39]. There was no evidence to show that the state was involved [54].
10. Separate consideration was made for the 2nd applicant in relation to Torture risk. The Director found that there were no substantial grounds for believing that the 2nd applicant would be subjected to torture upon return to Indonesia [53 & 55].
The Board’s Decision
11. The applicants appealed to the Board against the Director’s Decision and the 1st applicant appeared before the Board on 17 January 2019. The Board dismissed their appeal having considered the evidence and found:
(1) the inconsistencies and changes in the 1st applicant’s evidence cast serious doubts on her credibility in relation to the loan [48];
(2) the 1st applicant was not a credible witness and the adjudicator found that she had fabricated and concocted her evidence to advance a claim for non-refoulement protection;
(3) the 1st applicant’s parents had shown a willingness to accept her and the 2nd applicant and she said that she would like to go home;
(4) the 1st applicant had reconciled with her family and her daughter, the 2nd applicant, was no longer an issue [54].
Application for leave to apply for judicial review
12. The applicants filed Form 86 on 17 April 2019 for leave to apply for judicial review of the Board’s Decision.
13. In the applicant’s affirmation in support of their joint application, she said she scared to bring back two babies back home as her family did not know she now has two babies.
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 applicants’ 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).
15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
16. It is clear that the Director and the Board had considered the 2nd applicant’s case separately, identifying the issues relating to the 2nd applicant, which satisfies the requirements set down by the Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq, Adjuciator of the Torture Claims Appeal Board/Non Refoulement Claims Petition Office [2020] HKCA 971.
17. The 1st applicant has raised no valid ground 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 applicants fail to show that they have any realistic prospect of success in their proposed judicial review.
CONCLUSION
20. I refuse to grant leave for the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.
Dated the 16th day of June 2022
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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 16 June 2022
Suryaningsih
and
Suryaningsih Serena Amora
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 16 June 2022
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9869/18/1/142/I995 &
USM 9870/18/1/143/I996
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 2081/17 (Formerly RBCZ 2001051/14) &
QA T/C 2091/17 (Formerly RBCZ 10765/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”)
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