SUGIYATI BT SUMARTO SARIM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1298/2019

[2024] HKCFI 1010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1298 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 absent 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 29 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall 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 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 is a national of Indonesia.  She last arrived in Hong Kong on 7 May 2008 to be employed as a domestic helper, but her contract was prematurely terminated on 24 June 2008.  She overstayed and was eventually arrested by the police on 2 July 2010.  She raised a torture claim on 12 October 2010, which was rejected on 3 May 2012.  She subsequently raised a non-refoulement claim on 4 and 5 March 2015 on the basis that she would be harmed or killed by a creditor of her late paternal grandmother if she is refouled. 

5.  In short, the applicant claimed that in May 2009, she was informed via telephone by her neighbor (Aminah) in Indonesia that her paternal grandmother had passed away.  Aminah further told her that her late grandmother had incurred a debt of about 10 million Indonesian Rupiah and the creditor demanded the applicant to repay the loan.  Through Aminah, the creditor had threatened the applicant would be harmed if she could not make the repayment.  After this conversation with Aminah, there was no more contact between them.  In any event, the applicant is unaware of the identity of the creditor and details of the loan.  Details of her claim are set out at [7] of the Notice of Decision dated 18 April 2018 by the Director (the “Director’s Decision”). In light of her previous torture claim, the Director assessed her non-refoulement claim on all applicable grounds other than Torture risk^[1].

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  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

c.  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”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that: (i) the applicant’s conduct was not consistent with someone who was seeking non-refoulement protection in Hong Kong as she did not immediately lodge her claim [17.2]; (ii) there was never any physical violence or verbal threat inflicted against her by the unknown creditor [18]; (iii) the entire centerpiece of her claim, ie the fear from the creditor, is premised on hearsay information [19]; (iv) based on credible and objective COI, state protection was available [20] – [24]; and (v) internal relocation alternative was also available and reasonable [25] – [30].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 31 January 2019, the Board conducted an oral hearing for her appeal, during which she gave evidence with the assistance of an interpreter [12].  

9.  In summary, the Board found “multiple significant anomalies” in respect of the applicant’s evidence, which resulted in the rejection of her claim [25].  These included her background information regarding her grandmother and the rest of the family deposed at the hearing was vague and evasive [28].  There was a material change of evidence at the hearing when she stated she met Aminah in Causeway Bay in Hong Kong, yet in her written record, she clearly stated she spoke to Aminah via telephone [35].  The Board also had significant concerns in relation to her return to Indonesia in 2008, when she claimed she was in fear of a loan shark, yet her grandmother’s death was a year later in 2009 when Aminah informed her of the loan and she had offered no explanation for such discrepancy [38].  In the circumstances, the Board did not accept the applicant faced a real chance of harm of any type in Indonesia if refouled. 

10.  In assessing the relevant grounds of non-refoulement protection, the Board found she had failed to substantiate the said grounds on the basis it had rejected the factual matrices of her claim [49] – [60]. 

11.  For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

12.  On 15 May 2019, the applicant filed Form 86 for leave to apply for judicial review of the Board’s Decision.

13.  The applicant has filed an affirmation, in which she enclosed the hearing bundle, but did not set out any specific ground in support of her application.

DISCUSSION

14.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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).

15.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.  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.”

17.  The Board had, for the reasons given in paragraph 9 above, rejected the applicant’s evidence in support of her claim. There is no valid ground from the applicant to challenge the Board’s Decision.

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

CONCLUSION

19.  I refuse to grant leave for 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