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

HCAL 646/2019

[2022] HKCFI 2213

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 646 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 present in open court;

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

1.   The extension of time for the application for Judicial Review be refused; and

2.   The application for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the decision dated 16 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Her application is late as the deadline is within 3 months from the date of the Board’s Decision.^[1] I shall deal with this issue below.

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court fixed a hearing for her. She attended the hearing.

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 last entered Hong Kong in August 2009 as a foreign domestic helper.  According to her immigration records, she was convicted of an offence of attempted fraud on 3 July 2014 and was sentenced to imprisonment for six months.  On 10 July 2014, she lodged her non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her husband.

5.According to the applicant, she met her husband Supriyadi in October 2000 when they both worked in Malaysia.  The parties got married in 2004.  Not long after their marriage, the applicant realized that Supriyadi was physically abusive.  She was assaulted two or three times on a weekly basis.  One day in 2004, while she was pregnant, she was beaten up by Supriyadi with bare hands. Later in 2005, she was again assaulted by him because she refused to repay his loan.  From 2006 to 2014, she worked in Hong Kong to avoid contacts with Supriyadi. During her vacations, she would return to Indonesia and stay in the same house.  Supriyadi still inflicted harms on her and threatened to kill her.  He also harassed her for money via phone calls.  Out of fear, she decided to stay in Hong Kong for protection.  Details of her claim are set out at paragraph 7 of the Notice of Decision dated 24 November 2017 by the Director (the “Director’s Decision”) and paragraph 14 of the Board’s Decision.

The Director’s Decision

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

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

(2)  risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”) (“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 on the basis that she would not face any real or substantial risk of harm if refouled.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated low future risk of harm [13]-[15]; (ii) state protection would be available to her [16]-[24]; and (iii) internal relocation was a viable alternative [25]-[32].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 9 October 2018, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter [9].

9.The Board explored the material aspects of the applicant’s claim at the hearing [19]-[33].  Having considered the applicant’s evidence, the Board refused to accept the applicant as a witness of truth.  It did not accept that the applicant was a victim of domestic violence or threats of harm from her husband.  It also did not accept that her husband had taken, or threatened to take, their daughter away.  It was not satisfied that her husband had shown any real intentions to harm or even kill her [35].  On the basis of lack of credibility, the Board was not satisfied that the applicant would face any real risk of harm from her husband.

10.As a result, the Board rejected her claim and dismissed her appeal.

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

11.The applicant has filed Form 86 dated 7 March 2019 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant has raise the grounds below. The applicant refers to both the Director and the Board. Since the judicial review is only amenable to the Board’s Decision, I shall treat her ground against the Director’s Decision as the grounds against the Board’s as well as the Board had affirmed the Director’s Decision.

(1)  Her application is late because she did not receive the Board’s Decision.

(2)  Procedural impropriety: failure to properly apply paragraph 2 of the UN Committee against Torture General Comment No.2; failure to conduct sufficient inquiry into the relevant country of origin conditions.

(3)  Procedural impropriety / irrationality: failure to [give] reasons for assessment of lack of BOR 3 risk and/or sufficient basis to support lack of BOR 3 risk. Failure to conduct hearing for her appeal and not sufficient reasons to support the Board’s findings.

(4)  Error/misdirection in law: failure to take into account of psychological strain and threats to the applicant.

DISCUSSION

13.As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merit of the applicant’s case.

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

15.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant confirmed that the hearing before the Board was fair. But she is not satisfied with its decision, not allowing her to stay in Hong Kong.

16.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.”

17.Her grounds in paragraph 12 above do not assist her application. Ground (1) is not relevant as the Court will consider the merits of her case. Ground (2) is her opinions or comments without any evidence in support. Ground (3) is not the fact as the Board had given the reasons for its decisions and the Board had held a hearing for her appeal as according to the Board’s Decision. Ground (4) is not valid as she had never raised this issue before the Board according to the Board’s Decision.

18.The applicant has not raised any valid reason to challenge the Board’s Decision.

19.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.

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

CONCLUSION

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

Dated the 3^rd day of August 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