Nursanti v. Torture Claims Appeal Board / Non-refoulement Claims

HCAL 1299/2018

[2021] HKCFI 695

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1299 of 2018

BETWEEN

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;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

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

2.The applicant applies for leave to apply for judicial review of the Decision dated 29 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

3.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.

The applicant

4.The applicant is an Indonesian national.  She came to Hong Kong to work as a domestic helper on 13 September 2013. After she finished her contract, she did not leave Hong Kong. She surrendered to the Immigration Department on 18 May 2016. On 12 October 2016, she lodged her non-refoulement claim with the Immigration Department.

5.The applicant claimed that, if refouled, she would be harmed or killed by her father’s creditor, who asked her to marry him for her father’s debt. She refused. The creditor had underlings to work for him. His underlings assaulted her father when he was attempting to rape her on one occasion. She had been raped by this creditor once. She reported to police. Police demanded bribe, which she was unable to pay. Sometime later, one of the creditor’s underlings came across her and threatened her to marry the creditor or she would be killed. She came to Hong Kong and worked as a domestic helper. Details of the incidents are set out in paragraphs 7-17 of the Board’s Decision.

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 20 February 2017 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found that there were no substantial grounds for believing that there would be any real risk of her being harmed or killed by her father’s creditor upon her return to Indonesia [11]; that state protection was available to her [15] and that internal relocation was an option open to her [16].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision and attended the hearing on 19 December 2017.

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

10.The Board considered the applicant’s evidence and found that it accepted major parts of her evidence on the facts of her case. However, it considered that the sexual assaults by the creditor was not a systemic risk of harm [76]; state protection was available to her [95] and internal relocation was an option open to her [97]. On those bases, it rejected her claim on Persecution risk [77], BOR 3 risk [83], BOR 2 risk [86] and Torture risk [89].

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 6 July 2018 for leave to apply for judicial review of the Board’s Decision. In her affirmation in support of her application, she had attached a copy of the Board’s Decision without stating any specific reasons opposing the Board’s Decision.

DISCUSSION

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

13.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.”

14.The applicant’s affirmation does not assist her application.

15.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.

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

CONCLUSION

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

Dated the 19^th day of March 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