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

HCAL 2971/2018

[2020] HKCFI 1204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2971 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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 19 November 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. The Court will deal with her application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by deleting “USM” and replacing it with the Board as proposed respondent and by deleting the Board and replacing it with the Director of Immigration (“the Director”) as interesting party.

The applicant

4.  The applicant is an Indonesian national. She came to Hong Kong and worked as a domestic helper in 2012 or 2013. Her working visa expired and she overstayed. She gave birth to a child in June 2016. She submitted her claim for non-refoulement in December 2017. She claimed that if refouled, she and her son would be killed by her father, who was angry with her for giving birth to a son in Hong Kong with a Nepalese. Her son had succeeded in obtaining resident status in Hong Kong.

The Director’s Decision

5.  The Director considered her application in relation to the following risks:

a.  risk of torture under Part VIIC 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”).

6.  By Notice of Decision dated 29 January 2018 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated.  The Director found that she would not have the real chance of facing any real risk of harm or life danger from her father and brother as her feared risk would be unlikely to materialize if she returned to Indonesia [11]; state protection was available to her [44]; internal relocation was an option open to her [42] and the applicant failed to establish her claim under BOR 2 risk.

The Board’s Decision

7.  The applicant appealed to the Board against the Director’s Decision and attended the hearing on 16 August 2018.

8.  By the Board’s Decision, the Board rejected her appeal and confirmed the Director’s Decision.

9.  The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusion that there was no evidence to support that the applicant was subjected to any threats or meaningful risk and that the evidence was clear that she simply wished to stay in Hong Kong to care for her son [39].

10.  On the basis of the evidence, the Board did not accept that she would be subjected to any of the risks above.

Application for leave to apply for judicial review

11.  The applicant filed Form 86 on 24 December 2018 for leave to apply for judicial review of the Board’s Decision.

12.  In her affirmation in support of her application, she did not set out any ground in support of her application. Nor did she say that the Board was in error in coming to its decision.

DISCUSSION

13.  As the Board did not accept that she was under any real risk if she returned to Indonesia, her claim will fail.

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.  There is nothing to show that the Board had committed any error in its application of the law to her case.

16.  The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

17.  Since the applicant’s application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to grant her leave 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