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

HCAL 968/2019

[2023] HKCFI 1306

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 968 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 4 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall 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 last entered Hong Kong on 27 October 2013 as a foreign domestic helper.  Her employment contract was prematurely terminated and she was required to leave, under the two-week limitation of stay, on or before 27 October 2015.  She did not depart and had overstayed since 28 October 2015.  On 2 November 2015, she surrendered herself to the Immigration Department.  On 24 January 2017, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her husband.

5.In short, the applicant claimed to be a victim of domestic violence. She started working in Hong Kong since 2003.  However, during her vacations back home in 2009 and 2013, she was assaulted by her husband who demanded her salary.  Out of fear, she decided to seek protection in Hong Kong.  Details of her claim are set out at paragraph 7 of the Notice of Decision dated 15 January 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

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 Decision, the Director dismissed the applicant’s claim as her claimed fear of harm was groundless.  In elaboration, the Director found that (i) the dispute with her husband was a private monetary dispute in a family context and her husband was not involved in an official manner [12]-[13]; (ii) state protection would be available to her [14]-[16]; and (iii) internal relocation was a viable alternative [17]-[18].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 28 December 2018, the Board conducted an oral hearing for her appeal.

9.The Board accepted that the applicant was subject to domestic violence [31].  However, it refused to accept that she would encounter the same if refouled.  In particular, the Board noted that it had been five years since she contacted her husband; that her husband had never attempted to find out her whereabouts in Hong Kong; that she did not sustain injuries that attained a minimum level of severity and that she could seek protection from the government [32].

10.The Board further considered the country of origin information and found that state protection would be available to the applicant [38]-[45].  In any event, internal relocation was a viable option [68]-[72].

11.For the above reasons, the Board rejected the applicant’s claim and dismissed her appeal.

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

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

13.In her affirmation in support of her application, the applicant said that she was not satisfied with the Board’s Decision and she did not want to go back to her country at this moment.

DISCUSSION

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.

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.The Board found that she would not have the alleged risks if she returns to Indonesia. The grounds raised in paragraph 13, supra are only her personal opinions and they are not valid to challenge the Board’s Decision.

18.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.

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

CONCLUSION

20.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 23^rd day of May 2023

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