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

HCAL 1148/2019

[2023] HKCFI 2852

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1148 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.

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 18 April 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. 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 had been a foreign domestic helper in Hong Kong since August 2007. Her last employment contract was prematurely terminated on 28 August 2011 and she was required to leave on 11 September 2011. She did not depart and had overstayed since 12 September 2011. On 24 December 2011, she was arrested by the Hong Kong police. Later, she was released on recognizance after she lodged a non-refoulement claim. However, she failed to report her recognizance and had absconded. On 27 December 2015, she was rearrested. On 21 January 2016, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her husband and the debt collectors.

5.  In brevity, the applicant married her husband in around 2006. Since then, the couple had been quarreling as the husband was jobless. Whenever they argued, the husband would push her but did not physically hurt her. Later, the husband informed the applicant of his loan and demanded her to repay on his behalf. After the deadline of the loan expired, the debt collector came with his underlings to threaten the applicant. The applicant confirmed that they never harmed her. Meanwhile, in around September 2005 to September 2006, the dispute with her husband escalated due to the outstanding loan. Her husband started to assault her. In the end, the applicant separated with her husband and came for overseas employments. As she heard that her husband and the debt collectors still wanted to harm her, she decided to seek protection in Hong Kong. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 15 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. 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]-[15]; (ii) her behaviors were inconsistent with someone who genuinely had a fear of harm [16]; (iii) state protection would be available to her [17]-[19]; and (iv) internal relocation was a viable option [20]-[21].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 28 December 2018, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter qualified in the Indonesian and English languages [6].

9.  At the outset, the Board considered the applicant’s immigration history and found that she failed to take all the available opportunities to seek protection, which was detrimental to her credibility [22]-[29]. It also noted that the alleged disputes with her husband and the debt collectors were private disputes without state involvement [33]-[38]. While the Board accepted the existence of the alleged disputes, which led to the claimed threats, it refused to accept that she would face the same risk of harm after the lapse of years, especially she had ceased contact with the debt collectors or her husband; that she would face any problems whatsoever in her home country; that her husband still had adverse interests in her; that she had suffered any injuries that attained the requisite severity; and that the state was unwilling to help her [44]. In fact, the Board found that state protection was available to the applicant [57]-[63]. In any event, internal relocation was a viable option [86]-[91].

10.  For the above 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

11.  The applicant has filed Form 86 dated 30 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In her affirmation in support of her application, the applicant did not set out any specific ground.

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 Board had, for the reasons given in paragraph 9, supra found that the applicant had failed to establish that she will have real risk of being harmed or killed as claimed.

17.  The applicant has raised no valid ground to challenge the Board’s Decision. 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.

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