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

HCAL 1115/2018

[2021] HKCFI 421

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1115 OF 2018

BETWEEN

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 K.W. Lung:

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 15 May 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. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 was amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.The applicant is an Indonesian national. She came to Hong Kong and worked as a domestic helper on 21 September 2013. Her employment was prematurely terminated. But she remained in Hong Kong illegally. On 16 June 2016, she submitted her non-refoulement claim by a written signification.

5.The applicant claimed that, if refouled, she would be harmed or killed by her husband due to domestic violence. She claimed that her husband was addicted to drugs, alcohol, gambling and womanizing and that he asked her to pay his debts to the loan sharks. She wanted to divorce him. He refused and had threatened if she dared to ask for divorce, he would kill her [7(m)]. She worked in Hong Kong as a domestic helper. She did not want to return to Indonesia for fear her husband might harm her.

The Director’s Decision

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

a.  risk of torture under Part VII C 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”).

7.By Notice of Decision dated 29 November 2016 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. [5] The Director found that the level of risk of harm if she returned to Indonesia was low [14]; that state protection was available to her [21] and that internal relocation was an option open to her [22].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision and attended the hearing on 25 January 2018.

9.The Board rejected her appeal and confirmed the Director’s Decision.

10.The Board considered the applicant’s evidence and found that:

(1)   the applicant was not a witness of truth and she manufactured the evidence as her evidence given to the Director was inconsistent with her evidence given to the Board [33-37];

(2)   it therefore did not accept that the applicant’s claims were truthful or that she would be harmed by Boiman, her former husband or a loan shark in relation to his debts [37].

11.As the Board rejected her evidence on the facts of her case, it also turned down her appeal in respect of her claim under the risks in paragraph 6 above. It dismissed her appeal and confirmed the Director’s Decision [57 & 58].

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 15 June 2018 for leave to apply for judicial review of the Board’s Decision. She said in her affirmation that the Board’s Decision was unfair and unreasonable.

DISCUSSION

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  In a nutshell, the Board rejected her evidence on the facts in support of her claim. See paragraph 10 above.

14.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.  Nupur Mst v Director of Immigration [2018] HKCA 524 [14]; Ali Haider CACV8/2018, [2018] HKCA 222 [13]; Re: Moshsin Ali, [2018] HKCA 549 [47]; Re: MGU [2019] HKCA 853 [15(1)]; Re: Kartini [2019] HKCA 1022 [13(1)]; Re: Miah Mohammad Sahin [2020] HKCA 982 [12(3)].

15.The applicant’s ground in support of her application are her opinions without any evidence or specifics.

16.The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

18.I refuse her application for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 23^rd day of February 2021

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