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

HCAL 1884/2019

[2024] HKCFI 2471

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1884 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 28 June 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 21 August 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 46, is an Indonesian. Her employment contract as a foreign domestic helper (“FDH”) in Hong Kong was prematurely terminated on 29 January 2009 and she overstayed since 13 February 2009. The applicant was arrested by the police on 6 June 2009 for overstaying and she was sentenced to imprisonment of 14 days suspended for 24 months on 17 August 2009. The applicant made a torture claim on 21 August 2009, which was rejected on 3 November 2011. She failed to report recognizance and absconded since 16 December 2011. On 13 December 2017, the applicant was re-arrested by the police. She made a further non-refoulement claim on all applicable grounds other than Torture risk[1] on 21 December 2017. The claim was made on the basis that, if refouled, she would be harmed or even killed by her uncle due to a property dispute.

5.  According to the applicant, she worked as a FDH in Singapore between 2002 and 2005. Upon completion of her employment contract in Singapore, she stayed at her employment agency’s place until she went to Hong Kong in October 2006, after which she had never returned to Indonesia.

6.  The applicant claimed that prior to her grandfather’s death, he divided his heritage by giving his house (“the disputed house”) to the applicant’s father and his land to the applicant’s uncle. The applicant claimed however that her uncle wanted to take everything.

7.  In 2004, the applicant’s father suffered from serious illness. The witch doctor diagnosed that her father had been cast with black magic and that the casting had been done by a close relative for a specific purpose. The applicant’s father was admitted to hospital for further treatment, but he eventually passed away in 2004. In 2007, the applicant’s mother also passed away due to serious illness.

8.  After the demise of the applicant’s parents, her uncle got the title deeds of the disputed house and moved in. In around 2008, when her brother requested the return of title deeds, her uncle slapped him and asked whether he would like to suffer the same fate as his parents. The applicant’s siblings then made a report to the police, but they refused to file the case due to insufficient evidence.

9.  In mid-2008, upon knowing that the applicant kept asking for updates of the situation of the disputed house, her uncle threatened that she would die like her parents if she returned home. In 2009, while the applicant’s siblings were travelling to a wedding ceremony, they had a traffic accident and they all passed away. The applicant believed that her siblings had been cast with black magic.

10.  Since then, the applicant’s uncle had been occupying the disputed house. The applicant believed that her uncle would hit her if she returned home because he had a history of assaulting her siblings violently. The applicant was also worried that her uncle would cast black magic on her, causing her to suffer from incurable sickness.

11.  Since the applicant had no place to stay and had no relative in Indonesia, she tried to contact her neighbour for help when her employment contract was terminated in early 2009, but was in vain. She wanted to take back the ownership of the disputed house, but her education level was low and she had financial difficulties to hire a lawyer.

12.  The applicant was of the view that she could not seek protection from the police because they were corrupt and that they would not take any action after receiving bribes. The applicant also considered internal relocation not viable because there was an economic crisis in Indonesia and she also had no surviving family members back there.

13.  Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 3 January 2019 (“the Director’s Decision”).

The Director’s Decision

14.  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”); 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”).

15.  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 her uncle indicated that the claimed risk of harm was low [16]; (ii) there was no evidence showing that her uncle had the intention to seriously harm or kill her [17]; (iii) the applicant’s behaviour was inconsistent with that of someone genuinely in fear [18]; (iv) state protection would be available [19]-[25]; (v) internal relocation would be viable [26]-[32] and (vi) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [33]-[38] or Persecution risk [39]-[44].

The Board’s Decision

16.  The applicant appealed the Director’s Decision to the Board. On 10 June 2019, the Board conducted an oral hearing.

17.  The Board found the applicant’s account wholly unreliable [19]. All her evidence were hearsay because throughout 2004 and 2009, she was not in Indonesia. There was nothing to support her claim that all her family members died out of the black magic cast on them [20]. Furthermore, the applicant’s behavior of jumping recognizance was also inconsistent with that of someone who genuinely wanted non-refoulement protection [22]-[28].

18.  In any event, state protection would be available to the applicant according to the country of origin information [31]-[33] and that internal relocation would also be viable [45]-[48]. Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk or Persecution risk [8]-[15], [34]-[44].

19.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

20.  The applicant has filed Form 86 dated 5 July 2019 for leave to apply for judicial review of the Board’s Decision.

21.  The applicant, in her affirmation in support of her application, said that the Board had disregarded her dangerous situation.

DISCUSSION

22.  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).

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

24.  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.”

25.  For the reasons given by the Board above, the Board did not accept her factual evidence in support of her claim.

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

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

DISPOSITION

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