Sukenih v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL 2501/2018

[2019] HKCFI 2834

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2501 of 2018

BETWEEN

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 K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.The applicant is a national of Indonesia. She came to Hong Kong as a domestic helper and was allowed to stay until 3 March 2014. She overstayed and was arrested by police on 3 February 2016. She was convicted of the offence of overstaying without permission and was sentenced to two months’ imprisonment, suspended for two years. She lodged her non-refoulement claim on 5 March 2016.

3.In her statements given to the Director and the Board, she claimed that if refouled, she would be killed by her mother and the loan shark because she refused to marry the loan shark as a replacement for the debts owed by her parents.

4.She was the guarantor of her father’s debts from the loan shark. The loans were for her father’s medical expenses. Her parents were unable to repay the loan shark. Her mother had already sold the family home to repay part of the debts. She did not know how much was still outstanding. She had a sister working as a domestic helper in Hong Kong. She sent money to her family from time to time. But she had four children in Indonesia. The loan shark would like to marry her as payment of the debts. She was unwilling to marry the loan shark. She is reluctant to return to Indonesia.

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 under RC”).

6.By Notice of Decision dated 30 January 2018 (“the Director’s Decision”), the Director rejected her claim for the reason that her claim was not substantiated.

The Board

7.The applicant appealed to the Board and she attended a hearing before the Adjudicator on 20 June 2018.

8.By Decision dated 15 October 2018 (“the Board’s Decision”), the Board refused her appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s case and was prepared to accept the facts as she stated. It then applied the relevant statutory provisions and Convention to her case by reference to the Torture risk, BOR 3 risk, Persecution risk under RC and BOR 2 risk.  For each of the categories of risk, the Board had considered that even if the risks as alleged existed, the applicant had the state protection and the option of internal relocation was open to her. Below are the reasons in respect of each of the risks.

1. Torture risk: the harm the applicant feared from the loan-shark did not come within the definition of torture under section 37U(1) of the Ordinance. [46]

2. BOR 3 risk: evidence showed that this was only a remote and not a real risk. [55]

3. Persecution risk under RC: there was no evidence that her fear of such risk came within the Convention reasons. [65]

4. There was no evidence that the applicant faced a real risk of being arbitrarily deprived of her life. [70]

10.In her Form 86 under Order 53, rule 3 of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Director’s Decision and the Board’s Decision respectively.

11.In her affirmation in support of her application dated 8 November 2018, the applicant relied upon the following grounds:

1. procedural impropriety: failure to conduct sufficient inquiry into the relevant country of origin conditions;

2. procedural impropriety / irrationality; failure to [provide] reasons for assessment of lack of BOR 3 risk and / or sufficient basis to support conclusion of lack of BOR 3 risk;

3. error / misdirection in law: failing to take into consideration of psychological strain and threats to her personally or threats to her directly, to kill her; and

4. not sufficient basis to conclude that she was not subjected to torture or BOR 3 risk.

DISCUSSION

The Director’s Decision

12.The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

13.The applicant’s application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. I dismiss her application.

The Board’s Decision

14.The applicant appeared before me. She confirmed that she was able to speak freely and tell her story fully to the Immigration officer and the Adjudicator.

15.I put the Board’s findings to her for her comments. She said that she had no comments.

16.It is obvious that as the Board accepted her evidence in support of her claim.

17.The question turns on whether the Board had applied the law and Convention to her case appropriately. Having “rigorous examination and anxious scrutiny” of the Board’s Decision, it is obvious that the Board had carefully considered each of the above risks, applying the appropriate statutory provision and the Convention to the facts of the case and came to its conclusion.

18.All those grounds above are not sustainable. The Board’s Decision has set out the reasons in respect of the risks as outlined in paragraph 9 above. Ground (1) is only her opinion without any evidence in support of it. Grounds (2) and (4) are self-defeated. The applicant had not raised the issue of psychological strain in the hearing herself. Ground (3) fails too.

19.The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.

CONCLUSION

20.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave to apply for the judicial review. Accordingly, I dismiss her application.

Dated the 21^st day of November 2019

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