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

HCAL 2152/2019

[2024] HKCFI 3257

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2152 OF 2019

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BETWEEN

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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 Board’s Decision dated 31 March 2017 in respect of Torture risk, BOR 3 risk and Persecution risk (“the Board’s 1^st Decision”). The applicant also applies for leave to apply for judicial review of the Board’s Decision dated 11 July 2019 in respect of BOR 2 risk (“the Board’s 2^nd Decision”). They are collectively called (“the Board’s Decisions”).

2.  The applicant’s application in respect of the Board’s 1^st Decision is out of time. However, since her application in respect of the Board’s 2^nd Decision is within time and the Board’s Decisions are based on the same set of facts, I shall consider the Board’s Decisions in one go.

3.  The applicant asked for a hearing. However, she was absent at the hearing on 4 November 2024. I shall deal with her claim on paper.

The applicant

4.  The applicant, aged 52, is an Indonesian. She last arrived in Hong Kong on 3 January 2012 to work as a foreign domestic helper (“FDH”). Her employment contract was prematurely terminated on 7 March 2012 and she overstayed since 22 March 2012. The applicant was arrested by police on 20 November 2012 and was sentenced to imprisonment of 4 weeks suspended for 3 years on 3 December 2012. The applicant made a non-refoulement claim on 24 September 2013. The claim was made on the basis that, if refouled, she would be harmed or even killed by her husband because she refused to pay his debt.

5.  According to the applicant, in mid-2007 when she was working in Hong Kong, her husband started threatening her over the phone weekly to repay his loan. This continued until 2010, after which she had no update about her husband. The applicant had never reported the threat from her husband to the police and was unsure whether she could receive protection from them. She also considered internal relocation not viable because her husband could find her through his friends.

6.  Subsequently, the applicant’s family and neighbours were threatened by some gangsters to disclose her whereabouts. Their houses and shops were also set on fire. The applicant further claimed facing risk of harm because she is a lesbian. She could not seek protection from the police because they were corrupt and she feared retaliation. She also claimed internal relocation not feasible because she had no friends to rely on elsewhere within Indonesia.

7.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 10 June 2015 (“the Director’s 1^st Decision”) and paragraph 3 of the Director’s Decision dated 9 August 2017 (“the Director’s 2^nd Decision”).

The Director’s Decisions

8.  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”).

9.  By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk and BOR 3 risk. The Director found that (i) the low intensity and frequency of past ill-treatment from her husband indicated a small future risk of harm upon her return to Indonesia [12]; (ii) state protection would be available [13]-[14] and (iii) internal relocation would be viable [15]-[19].

10.  By way of the Director’s 2^nd Decision, the Director dismissed the applicant’s claim on BOR 2 risk. The Director found it unconvincing that gangsters would set fire to the houses of the applicant’s relatives because the matter was a private loan dispute between the applicant and her husband. Furthermore, there was no evidence showing that her family had suffered any harm or that they were being specifically targeted [5]. Regarding the applicant’s homosexuality, she had never raised such a claim in her previous evidence. In any event, it is not illegal for being a lesbian in Indonesia and that the Indonesian government had even taken steps to affirm the rights of lesbians [7]-[8]. As to the applicant’s claim that the police could not protect her, the Director found there was insufficient evidence indicating that state protection would be unavailable [9].

The Board’s Decisions

11.  The applicant appealed the Director’s 1^st Decision to the Board. On 17 August 2016, the Board conducted an oral hearing.

12.  The Board considered that the threats given by the applicant’s husband over the phone between mid-July 2007 to 2010 were empty threats [15]. Upon consideration of the country of origin information, state protection and internal relocation would also be available [16]-[29]. As the dispute between the applicant and her husband was private in nature with no evidence of state involvement and that she never received any physical harm from her husband, the Board rejected her claim on Torture risk, BOR 3 risk and Persecution risk [30]-[46].

13.  The applicant’s appeal was therefore dismissed and the Director’s 1^st Decision was confirmed (“the Board’s 1^st Decision”).

14.  The applicant also appealed the Director’s 2^nd Decision to the Board. On 29 April 2019, the Board conducted an oral hearing.

15.  The Board considered it impossible that the applicant could have learnt about the threat made against her family in 2017 from her husband because their last contact was around 10 years ago [8]-[10]. The applicant’s claim for fearing harm due to her homosexuality was also problematic because there was no evidence showing that she is a lesbian and she could not explain how her family/relatives found out about her sexuality. In fact, she admitted that it was her mere speculation that her husband would become angrier with her after knowing her sexuality [11] - [17].

16.  With this coupled with the findings in the Board’s 1^st Decision, the Board rejected the applicant’s claim on BOR 2 risk. The applicant’s appeal was therefore dismissed and the Director’s 2^nd Decision was confirmed (“the Board’s 2^nd Decision”).

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

17.  The applicant has filed Form 86 dated 29 July 2019 for leave to apply for judicial review of the Board’s Decisions.

18.  In her affirmation in support of her application, the applicant has set out the reasons below to challenge the Board’s Decisions:

(1) The hearing bundle was given to her shortly before the hearing and she did not have interpreter to assist her for the documents in English. She was confused, but she was able to answer all the questions put to her.

(2) The Board had relied on the source of new which is not officially recognized or is it simply hearsay. It had also relied on outdated cases, leading to its speculation that it is safe for her to return to her country.

(3) The Board did not consider the right to life.

(4) The adjudicator had never been to her country to understand the situation there.

DISCUSSION

19.  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).

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

21.  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.”

22.  Those grounds under paragraph 18 do not assist her application. Ground (1) does not stand well as she had not applied to the Board for more time to prepare her appeal and yet, she was able to answer all the Board’s questions. Ground (2) and Ground (3) are her bare assertions without any evidence in support. Ground (4) fails because the adjudicator may rely on the COI instead of going to her country himself.

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

DISPOSITION

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