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

HCAL 3656/2019

[2024] HKCFI 3498

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3656 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 9 December 2019, the applicant applied for leave to apply for judicial review (“Leave Application”) of the decision of the Torture Claims Appeal Board (“the Board”) dated 29 November 2019 (“Board’s Decision”). The Board had dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 17 April 2018 (“Director’s Decision”) who refused the applicant’s claim for non-refoulement protection.

Background

2.  The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.

3.  The applicant came from Indonesia. She arrived in Hong Kong on 18 December 2011, and was permitted to remain as a foreign domestic helper. After her employment contract was prematurely terminated on 3 February, she was allowed to remain until 17 February 2012. She did not depart and overstayed since 18 February 2012. On 31 July 2012, she was arrested for overstaying. On 4 August 2012, she was convicted of an offence for breach of condition of stay and was given a suspended sentence. On 27 August 2012, she lodged a torture claim[1], which had been rejected by the Director on 24 May 2013. On 19 March 2015, the Director received from the applicant an undated written representation for the lodging of her non-refoulement claim covering all applicable grounds other than the risk of torture – BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on her fear of being harmed or killed by her ex-husband and his creditors if she were re-fouled.

4.  The Director decided against the applicant’s claim on all applicable grounds. The Director did not believe that there were substantial grounds that there were any real and substantial risk of the applicant being harmed and killed by her ex-husband and his creditors upon her return to Indonesia. The Director found that there were numerous inconsistencies in her account provided in her Torture Claim Form and the information she gave at the interview during the screening interview. The Director also considered that her perceived risk of being harmed or killed by her ex-husband was not imminent and substantial as she asserted. The Director also did not find any sufficient facts or corroborative evidence in showing that the creditors were powerful and influential people who would and could utilize resources to locate the applicant with a view to harm or kill her upon her return. The Director further took into consideration of the objective “Country of Origin Information” reports and found that state protection and the option of internal relocation were reasonably viable. Hence, the appeal to the Board.

5.  On 27 February 2019, the applicant attended a hearing before the Board. During the hearing, the adjudicator for the Board questioned in detail about her background, her education and work history as well as her family composition, including her reasons for her fear of refoulement. After having considered the veracity of her evidence against the documentary evidence placed before the Board, the Board found that the applicant’s case that her ex-husband had tried to hang her was a fabrication. The adjudicator found that the applicant was not a witness of truth, and did not accept her claims that her husband had borrowed money. Neither did the adjudicator accept that the creditors of her ex-husband had threatened her or would harm or kill her if she returned to Indonesia. The Board found that the applicant’s claimed fear was not substantiated, and concluded that the applicant failed to make out her claim.

Legal principles applicable to judicial review

6.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

7.  The applicant’s Form 86 did not contain any grounds for seeking relief. In her supporting affirmation of the same date, apart from exhibiting a copy of the Board’s decision, she did not provide any grounds in support of her intended challenge.

8.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. In the absence of any specific grounds in support of the Leave Application, I find that both the Director and the Board have come to the correct conclusion that the applicant had failed to discharge her burden of proving the asserted fears and risks.

9.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. The Leave Application is accordingly dismissed.

Request to withdraw the Leave Application

10.  The court recently received a letter from the “Removal Assessment and Litigation (Removal and Deportation) Section” of the Immigration Department. Enclosed with the said letter was a letter addressed to the Director from the applicant dated 3 October 2024. In the applicant’s letter, it was stated that she wanted to “cancel her non-refoulement claims including appeal/JR (if any) in Hong Kong” as she wanted to go back to her home country as soon as possible. She further stated that it was safe for her to go back.

11.  Apart from the applicant’s said letter of request to, among other things, withdraw the Leave Application, there is nothing outstanding in this action. In the circumstances, I hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471.

Orders

12.  The Leave Application be dismissed.

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