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

HCAL 1099/2019

[2022] HKCFI 1379

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1099 of 2019

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 25 July 2018, which is the Decision of the Director of Immigration and is not amendable to judicial review because it had been dealt with by the Decision dated 15 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”)[1]. Form 86 will be amended accordingly.

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, the Director of Immigration (“the Director”) is the interested party and the relief sought is in respect of the Board’s Decision.

The applicant

4.The applicant is a national of Indonesia.  She last entered Hong Kong on 4 March 2016 as a foreign domestic helper.  However, her employment contract was terminated prematurely on 30 September 2016.  She did not depart and had overstayed since 15 October 2016.  On 4 November 2016, she was arrested by police.  On 28 April 2017, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by the drug dealers in Indonesia.

5.According to the applicant, the drug dealers’ problem started in 2010 after her husband had been imprisoned. The drug dealers went to her home to search for drugs stolen by her husband. She had no idea about the stolen drugs. They had visited her home for the same purpose several times. She and her son were not injured by the drug dealers. She then decided to leave Indonesia for overseas employment since October 2015. Since then, she had no contact with them.

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

(1)     risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)     risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

(3)     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

(4)     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 way of the Director’s Decision, the Director refused the applicant’s claim.  The Director found that there was no substantial ground for believing that there would be any real and substantial risk of her being harmed or killed by the drug dealers upon her return [11]; that state protection would be available to her [14]-[17], and that internal relocation was an option open to her [18]-[19].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  The Board did not reject her evidence wholesale. It held that her evidence of her husband being imprisoned for drug offence and that the drug dealers had caused troubles to her for the alleged stolen drugs would be plausible. However, taking the evidence as a whole, the Board found at paragraph 56:

“…the Board does not accept that the underworld associates of the Appellant’s husband either believe any longer (if indeed they ever really believed) that the Appellant and her family have any knowledge of the missing drugs, nor that those men have any intention of harming the Appellant.

57. Consequently, the Board is not satisfied that the Appellant faces any appreciable risk of being harmed by these men if she returns to Indonesia now or in the reasonably foreseeable future.”

9.Thus, the Board rejected the applicant’s claim on all grounds and dismissed her appeal. 

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

10.The applicant has filed Form 86 dated 24 April 2019 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant said she rejected the Board’s Decision.

DISCUSSION

12.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).

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

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 raised no valid ground to challenge the Board’s Decision.

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

Dated the 24^th day of May 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