Case Document

100%Judiciary

HCAL 1211/2019

[2023] HKCFI 1988

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1211 of 2019

BETWEEN
	Erna Dwi Susilowati	Applicant
	and
	Torture Claims Appeal Board/	Putative
	Non-refoulement Claims Petition Office	Respondent
	and
	Director of Immigration	Putative
		Interested Party

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 26 April 2019 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.

The applicant

3.The applicant is a national of Indonesia. She came to Hong Kong on 22 November 2004 as a domestic helper. Her contract of employment was completed on 22 November 2006. But she did not depart and overstayed. She surrendered to the Immigration Department on 23 March 2018. She was convicted of the offence of overstaying without permission of the Director and was sentenced to imprisonment. A removal order was issued against her. She lodged her non-refoulement claim by way of written representation of 3 December 2018. The applicant’s claim is based upon her allegation that, if refouled, she will be harmed or even killed by Basuki owing to her refusal to marry him and to convert to Hinduism.

4.According to the applicant, her father had borrowed money from Basuki and he was unable to repay his loan. Basuki requested her to marry him and convert from Muslim to Hindu. She refused because she does not love him. In May 2022, Basuki and other people kidnapped her to a house where he repeated his requests. Upon her refusal, he hit her all over her body and raped her. She was badly injured. The next day, when Basuki attempted to rape her again, she kicked his testicles and managed to escape to a hospital. She received medication at the hospital. A police officer approached her and she reported the matters to the police officer. The police officer refused to take her complaint. She left the hospital on her own accord as she did not have money to pay the hospital. She reported the matter to her parents. They blamed her for refusing Basuki. She went to live in her friend’s place in Jarkata. In order to avoid her family, she came to Hong Kong and worked as a domestic helper. She did not return to Indonesia after her contract and was arrested. Details of her story can be found in paragraph 6 of the Director’s Decision dated 29 January 2019 (“the Director’s Decision”).

The Director’s Decision

5.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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim for the reason that her alleged risks of being harmed or killed by the creditor and her subordinates were assessed to be low. In essence, the Director found that from her experience, the creditor and her subordinates did not do harm to her family members or herself. They did not attempt to locate her when she was in Ho Chi Ming city [11] – [14]. State protection would be available to her [15]-[17] and internal relocation would be an option open to her [18] – [26].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 16 April 2019, the Board conducted an oral hearing for her appeal, during which he testified [4]. Having considered the applicant’s evidence, the Board concluded that the applicant was a dishonest and unreliable witness and her claim was not genuine [38. (e)].

8.The Board found that the applicant did not report the matter to police [38. (a)]; that her stay in Ho Chi Ming city for 2 months was uneventful [38. (c)]; that the threats and harassment from the creditor was far from severe pain and suffering, physical or mental, which triggered her escape from Indonesia [38. (d)].

9.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

10.The applicant has filed Form 86 dated 6 May 2019 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant set out the reasons below. In her grounds, she referred to the Director, which I shall take as the Board as the Director’s Decision is not subject to judicial review once he had appealed to the Board, Re: Moshsin Ali [2018] HKCA 549 at §45[1].

(1)  The Board had ignored the risk of extra-judicial killings and the Board had not given her sufficient time to prepare her case.

(2)  The Board had failed to consider state acquiescence as she was tortured by the law enforcement agencies and those in the high ups of political circles.

(3)  The Board had failed to give sufficient weight to the factors against state protection in the COI, preferring evidence in favour of state protection instead.

(4)  The Indonesian government is corrupt and in competent.

(5)  The Board’s attitude was unfair in that it had failed to attain the high standards of fairness in its decisions.

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

13.The Court will bear in mind that the Board’s Decision 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 Board, for the reasons given above, concluded that the applicant was a dishonest and unreliable witness.

16.As to the grounds in paragraph 11, all of the grounds are general or bare allegations without evidence in support. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”

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

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

CONCLUSION

19.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 8^th day of August 2023

(M.O. WONG)(Ms)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 8/8/2023 Erna Dwi Susilowati Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 8/8/2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 15499/19/2/18/I1634 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 5232/18 (T1S126) (formerly RBCZ 10982/18) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] “45. … the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. … the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

Cites 7 cases

Cases cited in this judgment

Nupur Mst v. Director of Immigration