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

HCAL 1681/2019

[2024] HKCFI 1388

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1681 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 present in open court;

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 4 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), she appeared before the Court on 17 April 2024.

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 36, is an Indonesian. She last arrived in Hong Kong on 15 July 2011 to work as a foreign domestic helper. Her contract was prematurely terminated on 30 November 2011 and she overstayed since 15 December 2011. The applicant was arrested for breach of conditions of stay on 13 September 2016 and was subsequently sentenced to imprisonment for 4 months. The applicant made a non-refoulement claim on 12, 19 and 23 December 2016. The claim was made on the basis that, if refouled, she would be harmed or even killed by her family and the villagers because she married a man of different ethnic and religion.

5.  According to the applicant, her parents followed Muslim rules strictly and everyone in her village was also Muslims. In about 2000, the applicant’s father borrowed some money from a creditor (“the creditor”) and made an arrangement that the applicant would marry the creditor’s son if he failed to repay the loan. The applicant was also arranged to work in the creditor’s home as a domestic helper for six months without payment to set off part of the loan. By the end of 2006, the applicant met a Bangladeshi Christian male and the two became lovers. She did not disclose this relationship to her family because of her boyfriend’s religion.

6.  In about June 2008, the applicant angered the creditor because she intended to stop working for him and come to Hong Kong for work. The creditor and his son requested the applicant’s father to surrender his house and land to them. Upon the refusal from the applicant’s father, they burnt down his house, forcing the applicant’s family to relocate. The applicant did not report the incident to the police because the police station was far away from her home and the creditor’s son had threatened her not to report to the police.

7.  The applicant came to Hong Kong eventually in June 2009. Her boyfriend started coming to visit her in Hong Kong in 2010 and they would live together as husband and wife whenever he visited her. In November 2011, when the applicant was preparing her return to Indonesia, she learnt from her father that her family were very angry about her relationship with her boyfriend because her actions were against Muslim traditions that a woman could only marry a man of the same ethnic origin. The creditor and the villagers had warned the applicant’s family not to accept her, so that her father threatened to kill her rather than to allow her to embarrass the whole family.

8.  In around March 2013, the applicant’s boyfriend married the applicant at a mosque in Hong Kong. A Muslim civil celebrant from Indonesia conducted the ceremony, but they were not given any marriage certificate.

9.  The applicant last contacted her family in around November or December 2014 and they were aware of her marriage to her boyfriend.

10.  The applicant was of the view that she could not get protection from the police because they were corrupt and she had no money to bribe them. She considered internal relocation not viable as well because her family would be able to find her due to their wide and strong Muslim network. She also believed that it would be difficult to find employment elsewhere in Indonesia due to her low education.

11.  Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 19 March 2018 (“the Director’s Decision”).

The Director’s Decision

12.  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”).

11.  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 received by the applicant indicated that her perceived risk of harm was not real and foreseeable [13]; (ii) state protection would be available to her upon her return [14] - [17]; (iii) internal relocation would be viable [18] - [21] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [22] - [27], Persecution risk [28] - [32] or Torture risk [33] - [35].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board. On 21 January 2019, the Board conducted an oral hearing.

13.  The Board found several key aspects of the applicant’s claim vague and implausible [38]. It did not accept her claimed relationship and marriage to her boyfriend [39] - [46]. It also noted significant inconsistencies in the applicant’s claim concerning her family’s knowledge about her relationship with her boyfriend [47] - [48]. In any event, the country of origin information showed that “honour killings” very rarely occurred in Indonesia [49] and that the applicant’s significant delay in making a non-refoulement claim also gave rise to concerns about the genuineness of her fears [50].

14.  Regarding the loan from the creditor, the Board accepted the applicant’s evidence that her father may have borrowed money from the creditor in 2000 and that she worked as a domestic helper for the creditor in order to pay off some of the debt [52]. However, due to the discrepancies in the applicant’s evidence, they rejected her claim about (i) the burning down of her father’s house; (ii) harm caused by the creditor on her family; (iii) receiving threatening phone calls from the creditor and (iv) the arrangement that she had to marry the creditor’s son if her father failed to repay the loan [53] - [57]. The Board found that even though the applicant may have been slapped while working as a domestic helper with the creditor, the risk of such mistreatment to reoccur was considered remote given the elapse of time and the lack of evidence indicating that the applicant would return to work for the creditor [58].

15.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk [9] - [14], [60], BOR 2 and BOR 3 risk [15] - [19], [61] - [62] or Persecution risk [20] - [25], [63]. It 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

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

17.  In her affirmation in support of her application, the applicant said that the Board’s Decision is unreasonable as the Board did not consider all the matters raised in her claim.

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. Before me, the applicant said she agreed that there are discrepancies in her evidence, however, she still has no money to pay off the debt.

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.  Having considered the applicant’s evidence, the Board came to its conclusion:

“38. The Board has carefully considered the Appellant’s claims including the written and oral evidence provided to the Department and her oral evidence given at the hearing before the Board. As set out below, the Board found several key aspects of the Appellant’s claims inconsistent, vague and implausible. For these reasons, the Board has serious doubts about the reliability and credibility of the Appellant’s evidence.”

22.  The grounds the applicant raised in paragraph 17, supra, are not valid to challenge the Board’s findings. There is no reason for the Court to interfere with the Board’s finding of the facts.

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

CONCLUSION

24.  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