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

HCAL 549/2023

[2023] HKCFI 1419

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 549 of 2023

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.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 9 March 2023 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“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.According to the record, the applicant is being detained by the Immigration Department.

The applicant

4.The applicant is a national of Indonesia. She entered Hong Kong as a foreign domestic helper and her last employment visa permitted her to stay until 4 December 2016 or two weeks after the termination of the employment contract, whichever was earlier. On 26 January 2016, her employment contract was prematurely terminated. She did not depart within the time limit and had overstayed since 10 February 2016. On 16 April 2016, she was arrested by the police. On 27 April 2016, she lodged a non-refoulement. Yet, the Immigration Department could not contact her since 15 June 2016. Later, on 4 October 2022, she was again arrested by the police. On 12 October 2022, she wrote to request the Immigration Department to resume the process of her non-refoulement claim. On 14 October 2022, the Immigration Department acceded to her request. Her claim was made on the basis that, if refouled, she would be harmed or killed by her elder brothers and their creditors.

5.In brevity, the applicant claimed that her elder brother Aji called her in 2014 and informed her of his debt borrowed from one of the creditors for their mother’s medical expenses. Oddly, he requested the applicant to return to Indonesia and marry the creditor. She refused. In January 2016, the applicant had been receiving Aji’s phone calls of threats from time to time. Yet, she stated that, after 2016, she ceased to get any phone calls from Aji nor did Aji ever harm her family members. Similar to her elder brother, her younger brother Edi also took out a loan from another creditor. He and the creditor often harassed the applicant via phone calls that, if she failed to settle the loan, they would harm or even kill her. 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 29 November 2022 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. In elaboration, the Director found that (i) the intention of her alleged enemies was for her to settle the loans [14]; (ii) her behavior in not actively pursuing the non-refoulement claim was inconsistent with someone who genuinely had a fear of harm [15]; (iii) there was no evidence that the alleged enemies were influential enough to locate her everywhere upon refoulement [16]; (iv) state protection would be available to her [17]-[22]; and (v) internal relocation was a viable option [23]-[24].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 2 March 2023, the Board conducted an oral hearing for her appeal, during which she was assisted by a Punti/Indonesian interpreter [12].

9.At the outset, the Board considered the applicant’s claim and the country of origin information (“COI”) [33]-[34], as well as weighing them against each other [35]-[95]. Having considered the evidence, the Board made the following findings. It accepted that, in the COI, there existed violence against women in Indonesia [98]. However, being consistent with the COI did not render the applicant’s claim with sufficient credibility [99]. In particular, the Board found that the applicant’s evidence was inconsistent as to her motive of coming to Hong Kong and when she was forced to marry Aji’s creditor [101]; that she failed to mention Aji’s threats in her written submissions [102]; that her evidence about Edi’s gambling problem was based on hearsay information [103]; that it was implausible that Edi would ask the applicant to repay the debt after she no longer had the gainful employment nor was it plausible that his loan shark would threaten the applicant, instead chasing Edi for repayment [104]-[105]; that it was implausible that Edi could obtain a loan of the said sum from the loan shark [106]-[109]; that the applicant’s evidence about Edi’s creditor(s) was changing [110]; and that the applicant failed to provide a reasonable explanation for her substantial delay in seeking protection [111]-[112].

10.For the above reasons, the Board found that the applicant’s claim lacked credibility [113]. Further, the Board found that state protection and internal relocation were both available to the applicant [119]-[149].

11.Therefore, 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 4 April 2023 for leave to apply for judicial review of the Board’s Decision.

13.In her affirmation in support of her application, the applicant had only attached a copy of the Board’s Decision, but did not set out any specific ground.

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 Decision 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 had, for the reasons given in paragraph 8, supra, rejected her evidence and her claim that she has real risk of harm or being killed upon her return to Indonesia. It therefore dismissed her appeal.

18.There is no valid ground from the applicant to challenge the Board’s Decision.

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 5^th day of June 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