SURATI v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 843/2019

[2020] HKCFI 2084

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 843 of 2019

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

Following:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a national of Indonesia who last arrived in Hong Kong on 21 June 2012 with permission to remain as a visitor up to 21 July 2012 when she did not depart and instead overstayed and was arrested by police on 10 June 2014.  After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her abusive husband.

2.  By a Notice of Decision dated 26 June 2018 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture claim”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“persecution risk”).

3.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real or substantial risk of her being harmed or killed by her husband upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from him, that it was a private domestic dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information show that reasonable internal relocation alternatives are available in Indonesia with a large population of 260 million people spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Indonesia away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her husband to locate her.

4.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 17 January 2019 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 25 March 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

5.  On 27 March 2019 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely attached copies of those decisions without putting forward any proper ground for her intended challenge.

6.  However, before her application could be dealt with by the court, the Applicant on 15 July 2020 wrote to request to withdraw her application because there is no more danger in her home country and that it would be safe for her to return to Indonesia.

7.  As such and as the basis for her claim no longer exists, it would be appropriate for her application to be dismissed rather than withdrawn.  According 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