Sumarni Sumadi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 382/2017[2018] HKCFI 170

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCAL382/2017

[2018] HKCFI 170

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 382 of 2017

BETWEEN

	Sumarni Sumadi	Applicant
	and
	Torture Claims Appeal Board / Non-Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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;

Order by Deputy High Court Judge Woodcock:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is an Indonesian national who first came to Hong Kong to work as a foreign domestic helper in 2003. She last entered Hong Kong on 25 November 2013 with permission to remain as a foreign domestic helper until 24 October 2015 or two weeks after termination of her contract, whichever was earlier. Her contract was prematurely terminated on 10 April 2015 but she did not leave Hong Kong as required on or before 24 April 2015. On 22 October 2015 she was arrested by the police for overstaying in Hong Kong. On 20 November 2015 she lodged a non-refoulement protection claim. This claim was rejected by the Director of Immigration (“the Director”) on 8 April 2016 and 7 April 2017.

2.The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected her appeal on 11 May 2017. The applicant filed a notice of application for leave to apply for judicial review on 11 July 2017 and she requested an oral hearing which was set down on 2 November 2017. The applicant appeared in person having had her application for legal aid refused.

3.The basis of her claim was that if she were to return to Indonesia she would be harmed or killed by her husband who had threatened to kill her. Both the adjudicator of the TCAB and the Director set out the applicant’s claim and evidence in full in their decisions therefore I only intend to summarise it here. The applicant was born in 1967, was married with a now adult daughter and in 2007 she used her savings from working overseas to buy a plot of land in her village to build a house to retire in. Her husband was to build it.

4.However, their relationship began to deteriorate from 2009 and although she continued to send him money from her salary, he demanded more and more. She found out that he was using her money to gamble, drink alcohol and spend it on other women. When she went home for a holiday and found this all out, they argued; he even slapped her face.

5.Despite this, from 2010 she sent him HK$3,500 a month to start to build the house. During the construction, there were many arguments over money and how it was to be built. There were many threats by her husband to kill her when she would not stop complaining. She also found out he was having an affair with a woman in their village. She was frightened he would really kill her. In 2012, he told her that he had borrowed 80 million rupiahs (HK$70,000) to pay for his drinking and gambling and that he expected her to send more money each month to repay his debt. She refused and he threatened to kill her when he she returned to Indonesia and to give her house to the loan shark as repayment.

6.She went home in November 2013 for a holiday and moved into her new home but one day two men came to the house; one of them was the loan shark. He demanded immediate repayment and her husband offered the house which he accepted. The applicant had no choice in the matter and was forced to sign transfer papers. Her husband threatened to kill her if she refused. When the men left, her husband said if he saw her again he would kill her. The applicant fled to her mother’s home before returning to her job in Hong Kong and has not seen her husband since.

7.The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

8.The adjudicator of the TCAB treated the appeal/petition as a rehearing. The applicant elected to answer questions with the assistance of an interpreter. The adjudicator correctly set out the law and key legal principles relevant to the four applicable grounds as well as the correct approach in assessing credibility in cases of this nature. He set out the applicant’s case, evidence and answers to his questions.

9.The adjudicator concluded that her evidence was credible and plausible. She had worked hard for 10 years as a domestic helper and lost the fruits of her labour when her husband coerced her into parting with her property. He believed her evidence that he helped her buy the land, build a house on it and then forced her to part with it because of his debt. He believed that their relationship had probably deteriorated over time and did slap her in 2009. He did not doubt her evidence that he threatened to kill her on at least five occasions between 2009 and 2013; but she did go back and see him in between those threats. Their daughter, with whom she is in regular contact, lives with his parents now. He knows she has lost her job, has no income and has nothing more to gain from her by threatening her.

10.Sad as her situation is, the adjudicator concluded that there was no real risk from her husband if she were to return to Indonesia to live with her mother. On her own facts, the adjudicator found she had failed to establish she would face a real risk of persecution, a real risk of torture or CIDTP under Article 3 of HKBORO, a real risk of being deprived of her right to life under Article 2 of HKBORO and a real risk of torture as defined in section 37U(1) of the Immigration Ordinance if she were refouled to Indonesia. The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

11.The applicant has sought leave to judicial review both the Director’s as well as the TCAB’s decision. This is not the appropriate course of action to take. The applicant has already utilised the channel of appealing the Director’s decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing or rehearing. There is no room for a judicial review of the Director’s decision. I have therefore, considered the grounds of her application against the decision of the TCAB only.

12.The adjudicator of the TCAB is alleged to have failed to consider the psychological/non‑physical aspects to torture; there was no assessment of her mental suffering. There was a failure to consider the impact of the abusive language used. There were no particulars with these three grounds but in any event mental torture or psychological/psychiatric issues were not put forward as part of the applicant’s claim at any stage. There is no merit in these grounds.

13.The adjudicator was also alleged to have failed to give the applicant sufficient opportunity to clarify inconsistencies in her case. Firstly, the adjudicator accepted her evidence as truthful and plausible; he did not set out any inconsistencies. Secondly, it is obvious there was a dialogue during the appeal with questions and answers, plenty of opportunity to speak given to the applicant. There is no merit in this ground.

14.In the last ground, the applicant submits there is no sufficient basis to conclude she would not be at risk of being subjected to torture. The adjudicator makes it clear why he came to that conclusion. She did not reach the threshold for him to find her at a real risk of being subjected to torture if refouled. There is no merit in this ground.

15.I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable. In my judgement, the applicant’s claim is not reasonably arguable. There is no realistic prospect of success therefore, I refuse leave for judicial review.

Dated 2^nd day of February 2018.

	(Alan Ngan)
	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 his solicitors must:
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)).		Sent to the Applicant on 2/2/2018 Sumarni Sumadi Applicant’s ref. no: Nil.		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 2/2/2018 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 3474/16/4/82/I305 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 137/16 (formerly RBCZ 14200/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1