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

HCAL 2021/2018

[2022] HKCFI 158

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2021 of 2018

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.The applicant applies for leave to apply for judicial review of the Decision dated 13 September 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 is 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 a national of Indonesia.  She entered Hong Kong as a foreign domestic helper on 24 April 2011.  However, she was arrested by the police on 21 January 2013 for theft and her employment contract was terminated prematurely on the same date.  She was sentenced to 12-month imprisonment for the offence and released on 21 September 2013.  She lodged a claim on risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) on 6 November 2013 which was subsequently assessed on all applicable grounds.   

5.The applicant claimed that, if refouled, she would be harmed or killed by the loan sharks as she was unable to repay the loans borrowed by her husbands.  According to the applicant, her first husband died from a car accident in July 2006.  From December 2006 to August 2007, she received phone calls of threats from the first loan shark asking her to repay her late husband’s loan.  Her house was also burnt down by the loan shark.  Later in December 2008, she left for Taiwan and had a second marriage.  In February 2009, she found out that her second husband was also indebted.  She was again threatened by the second loan shark that if she failed to repay she would be killed.  Later in mid-2009, she encountered the first loan shark and was assaulted for not being able to repay her late husband’s loan.  She also claimed to be beaten up by her second husband for failure to repay his loan.  Out of fear, she fled to Hong Kong for protection.  While she was in Hong Kong, the threats from the loan sharks continued.  Details of her story are set out in paragraph 7 of the Director’s Decision and paragraphs 8 to 24 of the Board’s Decision described below.  

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.  The Director found that the level of risk of her being harmed or killed by the creditors was assessed to be low [14]-[17]; that state protection would be available to her [18] and that internal relocation was an option open to her [19]-[23]. 

The Board’s Decision

8.The applicant appealed the Director’s Decisions to the Board.  She appeared before the Board on 19 March 2018 and gave oral evidence in support of her claim.

9.The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision.  During the cross-examination, the Board observed that the applicant’s oral evidence was different from those in her written statements.  It gave the applicant opportunities to clarify and confirm her version of events [25]-[42].  The Board found that the applicant’s evidence was evasive and vague and, when pushed for an answer, she provided a different story.  It noted that the applicant’s stories about the debt were drastically inconsistent: she mentioned in her written statements that there were two debts and that she was unaware of both of them but in her oral evidence she mentioned that there was only one debt which she signed the loan agreement herself [46].  In totality, the Board concluded that her claim of being pursued by the loan sharks was not credible as her evidence about the dealings with loan sharks differed substantially from her evidence in the non-refoulement claim form [47].  For these reasons, the Board rejected her claim on all applicable grounds [54]-[58].      

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

10.The applicant filed Form 86 dated 24 September 2018 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant said that she did not agree with the Board.  She still has problems in her country.  That is why she cannot go back.

DISCUSSION

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

13.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 CA §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

14.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.”

15.The applicant has not set out any valid ground to challenge the Board’s Decision.  The Board found that her evidence was unreliable and it had given reasons in support of its findings. 

16.The Court does not find any error of law or procedural unfairness in the Board’s Decision.  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 realistic prospect of success in her proposed judicial review.

CONCLUSION

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

Dated the 14^th day of January 2022

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