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

HCAL 677/2019

[2022] HKCFI 2499

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 677 of 2019

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 following:

(1)   Decision dated 15 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”);

(2)   Notice of Decision of the Immigration Department dated 24 May 2018;

(3)   Non-refoulement Claim form issued by the Immigration Department dated 23 March 2018; and

(4)   Record of screening interview issued by the Immigration Department dated 17 May 2018.

2.  Only the Board’s Decision is amenable to judicial review under the law, the others are not. Accordingly, they are dismissed.

3.  The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court fixed a hearing for her. However, the applicant was absent without prior notice to the Court. The Court will deal with her application on paper.

4.  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

5.  The applicant is a national of Indonesia.  She last entered Hong Kong on 8 November 2015 as a foreign domestic helper.  However, her employment contract was terminated prematurely on 14 November 2015.  She did not depart within the limitation of stay and had overstayed since 29 November 2015.  On 8 November 2017, she was arrested by the Hong Kong police.  On 15 November 2017 and 20 November 2017 respectively, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her father-in-law and her sister-in-law.  

6.  According to the applicant, her husband started physically abusing her since 2002.  She had no choice but escaped to Hong Kong.  In 2016, her husband passed away due to kidney failure.  Subsequently, her father-in-law and four sisters-in-law blamed her for her husband’s death.  They posed death threats through the phone calls to her.  Out of fear, she decided to stay in Hong Kong for protection.  Details of her claim are set out at paragraph 7 of the Notice of Decision dated 24 May 2018 by the Director (the “Director’s Decision”) and paragraph 5 of the Board’s Decision.         

The Director’s Decision

7.  The Director considered the applicant’s claim in relation to the following risks:

(1)   risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)   risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”) (“BOR 2 risk”);

(3)   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

(4)   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 way of the Director’s Decision, the Director refused the applicant’s claim on the basis that she would not face any real or substantial risk of harm upon refoulement.  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]-[18]; (ii) there was no evidence as to the asserted influence of the father-in-law and the sisters-in-law [19]; (iii) state protection would be available to her [20]-[22]; and (iv) internal relocation was also a viable alternative [24]-[25].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board.  On 7 January 2019, the Board conducted an oral hearing for her appeal, during which the Board explored the material aspects of her claim [10].

10.  Having considered the applicant’s evidence, the Board found that her claim lacked credibility.  In particular, the Board noted that the applicant provided two versions as to whether she still maintained contacts with her husband’s family members [11]-[12].  It found that the applicant still had contacts with her in-laws so that she could keep track on her children [14]. It further found that (i) the applicant did not appear to fear the in-laws [16]; (ii) the last threats against the applicant were made in 2016 [17]; (iii) there were no allegations that her in-laws were influential [18]; and (iv) the applicant had never suffered any kinds of harms [19].  In any event, state protection and internal relocation were both viable alternatives [38]-[46].

11.  For the aforesaid reasons, the Board rejected the applicant’s claim and dismissed her appeal.    

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

12.  The applicant has filed Form 86 dated 11 March 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In her affirmation in support of her application, the applicant stated the grounds below.

(1)   She was not provided with legal assistance or translation service for her appeal.

(2)   She was given the hearing bundle shortly before the appeal hearing and she did not understand fully the contents which are in English.

(3)   The Board’s Decision was not read to her or translated for her. She only obtained translation service at the Duty Lawyer Office.

(4)   The Board had not considered the country of origin of information in relation to women being subjected abusive behaviour in Indonesia.

(5)   The adjudicator of the Board was biased as he had taken some minor issues to determine that her evidence as unreliable without taking into account that the events happened long time ago and she is an asylum seeker.

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 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).

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

16.  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.”

17.  The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, at §18 held: “Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.”

18.  The Court of Appeal in Re Ahmed Syed Rafiq [2018] HKCA 178, held that the appeal court held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22].

19.  There is no requirement under the law that the Board’s Decision has to be read over to the applicant. The applicant did not tell the Board that she did not understand the contents of the hearing bundle. Nor was there evidence to show that she was confused at the hearing. The Board was able to assess her evidence. Therefore, Grounds (1) to (3) fail. Grounds (4) and (5) are only her opinions or bare assertions without any evidence in support. The Board had given its reasons for its findings.

20.  The applicant has not raised any valid reason to challenge the Board’s Decision.

21.  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.

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

CONCLUSION

23.  I refuse to grant leave for 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