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

HCAL 2042/2019

[2024] HKCFI 2604

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2042 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 12 July 2019 of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. However, she was absent at the hearing on 16 September 2024. 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 50, is an Indonesian. She last arrived in Hong Kong on 2 June 2013 to work as a foreign domestic helper (“FDH”). On 1 August 2014, her employment contract was prematurely terminated and she overstayed since 16 August 2014. The applicant was arrested by the police on 10 October 2015 for overstaying and she made a non-refoulement claim on 20 October 2015. The claim was made on the basis that, if refouled, she would be harmed or even killed by the creditor of her stepfather (“the creditor”).

5.  According to the applicant, her stepfather owed money to the creditor. Since 1996, the creditor repeatedly sent gangsters to threaten and assault the applicant’s family. In April 2000, her mother and stepfather were beaten until they became unconscious while the applicant also suffered bruises.

6.  With no means to repay the loan, the applicant came to Hong Kong to work as a FDH. The applicant last met the creditor when she returned to Indonesia for two weeks in 2008, during which she was threatened twice. She was worried about returning to Indonesia because she had not made any repayment since 2015.

7.  The applicant had never reported the matter to the police because the police station was far away from her home and that she had no money to bribe the corrupt police. The applicant also considered internal relocation not viable because she had no relative to rely on elsewhere.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 16 August 2018 (“the Director’s Decision”).

The Director’s Decision

9.  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”).

10.  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 creditor indicated a small future risk of harm upon her return to Indonesia [13]-[14]; (ii) the claimed risk from the creditor should have dissipated given the elapse of time [15]; (iii) state protection would be available [16]; (iv) internal relocation would be viable [17]-[23] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [24]-[29], Persecution risk [30]-[34] or Torture risk [35]-[37].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board. On 8 March 2019, the Board conducted an oral hearing.

12.  During the hearing, the applicant raised a claim that she feared ill-treatment from her stepfather upon return to Indonesia, which was not mentioned in the non-refoulement claim form [21]-[22].

13.  Having considered the applicant’s evidence, the Board was not satisfied that her claims were truthful [59]. There were significant inconsistencies in her evidence regarding (i) the loan amount [60]; (ii) whether her father or stepfather was the debtor [61] and (iii) details of the assault incident in April 2000 and its aftermath [62]-[66]. Furthermore, it was also unconvincing that she had no idea about the outstanding loan amount and that she would know the status of the loan despite losing contact with her stepfather [72]-[73].

14.  Due to the significant inconsistencies in her evidence and the total absence of documentary evidence, the Board rejected the applicant’s claim that her father and/or stepfather took out a loan from the creditor. It was further not accepted that there was a default on loan repayment and the happening of the debt collection incidents [74]. Meanwhile, her claimed fear against her stepfather was also doubtful [78]-[79]. In any event, internal relocation would be a viable option for the applicant [82].

15.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [86]-[107]. 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

16.  The applicant has filed Form 86 dated 18 July 2019 for leave to apply for judicial review of the Board’s Decision.

17.  In the affirmation in support of her application, the applicant has raised the grounds below:

(1)  The Board failed to take into consideration the right to life.

(2)  The Board failed to conduct sufficient inquiry into the relevant country of origin conditions.

(3)  The Board failed to provide sufficient reasons in support of its findings.

(4)  The Board failed to take into consideration of her psychological strain and threats.

(5)  The Board failed to consider that her enemies will farm her and her children upon refoulement.

DISCUSSION

18.  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).

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

20.  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.”

21.  From the Board’s Decision, the adjudicator had asked the applicant quite a lot of questions and had allowed her to give explanation to the issues she had raised with her. In my view, the Board was entitled to come to its views above.

22.  The applicant’s grounds under paragraph 17 are not valid to challenge the Board’s Decision. Grounds 1, 2, 3 and 5 are her bare assertions or opinions without any evidence in support. She has not raised any psychological issue with the Board. There is no reason for her complaint.

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

DISPOSITION

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