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HCAL 2079/2018
[2022] HKCFI 244
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2079 of 2018
BETWEEN
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Sutrisnowati Binti Ali |
Applicant |
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| and |
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| Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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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 applicant applies for leave to apply for judicial review of the Decision dated 24 September 2018 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 last entered Hong Kong as a foreign domestic helper but her employment contract was terminated prematurely. Her limit of stay was to expire on 1 June 2015 but she was arrested by the police on 17 May 2015 for soliciting for an immoral purpose and taking up unapproved employment. On 26 May 2015 and 1 June 2015, the applicant lodged a non-refoulement claim.
5. The applicant claimed that, if refouled, she would be harmed or killed by her husband and a loan shark called Mr. Slamet. According to the applicant, her husband borrowed a loan from Slamet in around 2014 for purchasing a house. Thus, she came to work in Hong Kong with the aim to repay the loan. However, she was arrested and defaulted the payment. As a result, she dared not go back to her home country as her husband was a violent person and threatened to kill her if she failed to repay the loan. She was also informed that the loan shark constantly visited their house and demanded for repayment. Out of fear, she stayed in Hong Kong for protection. Details of her story are set out in paragraph 6 of the Director’s Decision and paragraphs 5 to 10 of the Board’s Decision described below.
The Director’s Decision
6. The Director considered her application in relation to the following risks:
a. risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. 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”);
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 Notice of Decision dated 13 February 2018 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found that the level of risk of her being harmed by Slamet and her husband was assessed to be low [10]-[11]; that state protection would be available to her [12]-[13] and that internal relocation was an option open to her [14]-[15].
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 30 July 2018, the Board held an oral hearing for the applicant’s claim, during which she answered the Board’s inquiries with the assistance of an interpreter [12].
9. Having carefully considered the evidence, the Board opinioned that it could not confidently dismiss the applicant’s claim based on lack of credibility [34]. It accepted the core aspects of her claim about her marriage and the debt [35]-[46]. However, even taking the applicant’s evidence to the highest, the Board concluded that her non-refoulement claim was not made out because (1) the applicant and her husband had not lived together since 2005 and her last presence in Indonesia was in 2014. Both of them had separate relationships now and there was no evidence that her husband intended to maintain contacts with her [52]; (2) she was not the contractual party of the loan and she never met the loan shark [52]; (3) in any event, the dispute was private in nature and she had the option of relocation to other areas [53]-[54]; (4) the country of origin information indicated that state protection was available to the applicant [55]. Thus, the applicant’s claim on Torture risk was not substantiated [61]. For the same reasons, the Board also dismissed her claim on the remaining grounds [62]-[85]. As a result, the Board dismissed the applicant’s appeal.
Application for leave to apply for judicial review of the Board’s Decision
10. The applicant filed Form 86 on 2 October 2018 for leave to apply for judicial review of the Board’s Decision.
11. In her affirmation in support of her application, the applicant complained that the Immigration Department disregarded her dangerous situation.
DISCUSSION
12. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
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 CA §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).
14. 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.”
15. The applicant has not been able to raise any valid challenge against the Board’s Decision.
16. 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.
17. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.
CONCLUSION
18. I refuse grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 21st day of January 2022
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(Chasel MAN) |
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for Registrar, High Court |
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 21/1/2022
Sutrisnowati Binti Ali
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 21/1/2022
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10455/18/2/339/I1110
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 3623/17 (formerly RBCZ 11813/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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