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HCAL 1854/2023
[2024] HKCFI 3329
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1854 of 2023
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BETWEEN
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Siti Susanti |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge Levy:
1. Leave to the applicant to withdraw the Leave Application; and
2. The Leave Application be dismissed.
Observations for the Applicant:
Introduction
1. By prescribed Form 86 filed on 16 October 2023, the applicant applied for leave to apply for judicial review (“Leave Application”) of the decision of the Torture Claims Appeal Board (“the Board”) dated 17 August 2023 (“Board’s Decision”). The Board had dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 17 November 2022 (“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 Hong Kong on 18 March 2020 with permission to remain in Hong Kong as a foreign domestic helper. Upon the termination of her employment contract on 12 January 2022, she did not depart but instead continued to illegally overstay. On 28 July 2022, she was arrested for overstaying. On 1 August 2022, she was given a suspended sentence for her conviction for the offence of breaching a condition of her stay. On 16 September 2022, she lodged a non-refoulement claim, covering all applicable grounds of torture risks[1], 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 by her ex-husband if she returned to Indonesia and the refusal to give custody of her son to the ex-husband.
4. The Director decided against the applicant’s claim on all applicable grounds. The Director considered that there was no substantial ground for believing that there was a real risk of the applicant being harmed or killed by her ex-husband if she returned to Indonesia. Furthermore, the Director noted that the applicant’s conduct in not surrendering as soon as practical, and delaying her claim for protection until around a month after her arrest was inconsistent with the conduct of a person who genuinely feared a grave threat to her life. The Director also considered and concluded that the application could avail herself of adequate police protection if she needed it, and that there was viable and reasonable internal relocation alternatives available. Hence, the appeal to the Board.
5. In the Board’s Decision, the Board noted that at no time did the applicant’s ex-husband inflict any serious or life-threatening harm upon her. The Board found no credible evidence that there were substantial grounds for believing that she would face a real risk of harm of any kind from her ex-husband or that she would face a real risk of proscribed harm necessitating international non-refoulement protection if she were to return to Indonesia. The Board also shared the Director’s finding that viable and reasonable internal relocation options were available.
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, she only deposed that her life would be in danger if she were to return to Indonesia because her ex-husband would kill her. There were no evidence or identification of errors in support of the 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 four 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 it was perfectly open to the Board to come to its conclusion that the applicant’s evidence was not credible and that viable and reasonable internal relocation options were available.
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.
Withdrawal of Leave Application
10. On 31 October 2024, the applicant filed an affirmation to apply to withdraw the Leave Application, stating that she wanted to go back to Indonesia because it was safe for her to go back.
11. Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action. In the circumstances, I should grant leave to the applicant to withdraw the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471.
Dated the 28th day of November 2024
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( Seline Sze )
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 28/11/2024
Siti Susanti
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 28/11/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 21210
Director of Immigration
Putative Interested Party’s ref. no.:
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] This refers to the risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap.115.
[2] This refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”).
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[5] This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293.
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