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

HCAL 2455/2018

[2022] HKCFI 3135

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2455 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, by Form 86, applies for leave to apply for judicial review of the Notice of Further Decision dated 24 April 2017 (the “Director’s Second Decision”) by the Director of Immigration (the “Director”). In fact, the applicant had appealed the Director’s Second Decision to the Torture Claims Appeal Board (the “Board”), which, by Decision dated 31 October 2018 (the “Board’s Second Decision”), had dismissed his appeal. The Director’s Second Decision is therefore not amendable to judicial review[1]. This application should be dismissed in limine. However, it appears to me that the applicant intends to challenge the result of his BOR 2 risk assessment by the Board. In order to save time and costs for the applicant to initiate another application, I shall treat this as an error and rectify it so that this Court may deal with her application for judicial review against the Board’s Second 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, the Director of Immigration (“the Director”) is the interested party and the decision in respect of which relief is sought is the Board’s Second Decision.

The applicant

4.The applicant is a national of Indonesia. She entered Hong Kong on 30 July 2014 as a foreign domestic helper. Her limitation of stay as a foreign domestic helper was extended to 15 August 2015. However, on 10 August 2014, she was arrested by the police for taking up unapproved employment and soliciting for immoral purpose. Her employment contract was terminated prematurely on 11 August 2014. On 24 September 2014, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by the loan shark or her husband.

5.The applicant’s fear originated from a loan agreement her husband made with the loan shark in May 2011. The loan shark was a private moneylender and was not involved in any organization. The loan was for the family’s expenses and the medical fee for the applicant’s mother. Since June 2011, the loan shark had been pressing them for the interest payments. Despite the death threats, the applicant or her family was not harmed by the loan shark. In September 2013, the applicant learnt from her children that her husband threatened to kill her if she did not repay the loan. Out of fear, she stayed in Hong Kong for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 17 April 2015 by the Director (the “Director’s First Decision”).

The Director’s Decisions

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

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

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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 way of the Director’s First Decision, the Director dismissed the applicant’s claim on the grounds of Torture risk, BOR 3 risk and Persecution risk. In elaboration, the Director found that (i) the absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]; (ii) state protection would be available to her [14]; and (iii) internal relocation was a viable alternative [15].

8.For reasons set out in the Director’s Second Decision, the Director found that the applicant’s right to life would not be violated and thus dismissed her claim on BOR 2 risk.

The Board’s Decisions

9.The applicant first appealed the Director’s First Decision to the Board. On 31 May 2016, the Board held an oral hearing for her appeal.

10.Insofar as the verbal threats from her husband was concerned, the Board found that, on the applicant’s evidence, the said threats were not serious and that her husband had no real intention to harm or even kill her [22]-[28]. The alleged ill-treatments from her husband, if any, failed to attain a minimum level of severity [32]. As to the threats from the loan shark, the Board found that he was no serious in materializing the threats as he never attempted to locate the applicant [33]-[39]. In any event, state protection and internal relocation were both viable alternatives [40]-[48].

11.In assessing the individual grounds, the Board further concluded that these were private disputes without state involvement [53]; and that she was never inflicted any physical harms and the alleged mental harms were insignificant [59]-[63].

12.In light of the aforesaid findings, on 3 March 2017, the Board rejected the applicant’s claim and dismissed her appeal against the Director’s First Decision (the “Board’s First Decision”).

13.Thereafter, on 11 October 2018, the Board conducted an oral hearing for the applicant’s appeal against the Director’s Second Decision.

14.The Board considered the applicant’s evidence in relation to her BOR 2 risk. It found that her last contact with the loan shark was three years ago and her husband two years ago. This indicated that the loan shark and her husband no longer had any adverse interests in her [5]-[12]. Coupled with the findings in the Board’s First Decision, the Board, by the Board’s Second Decision, also rejected the applicant’s appeal against the Director’s Second Decision.

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

15.The applicant has filed Form 86 dated 5 November 2018 for leave to apply for judicial review of the Board’s Second Decision.

16.In her affirmation in support of her application, the applicant said that she rejected the decision made by the Immigration Department as they disregarded the danger and threat she faced in her country if she was deported.

DISCUSSION

17.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).

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

19.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.”

20.The grounds in paragraph 16 above are her personal opinions and bare assertions without any evidence in support. There is no valid ground to challenge the Board’s Second Decision.

21.The Court does not find any fault with the Board in reaching the Board’s Second Decision.

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

CONCLUSION

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

Dated the 1^st day of November 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