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

HCAL 1215/2019

[2023] HKCFI 1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1215 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 18 March 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 13 January 2012 as a domestic helper. Her employment contract was terminated, but she did not depart and overstayed in Hong Kong since 7 March 2013. She was arrested by police and referred to the Immigration Department. She raised a non-refoulement claim on 30 September 2013.

4.The applicant claimed that, if refouled, she will be harmed and forced to marry an unknown loan-shark because of a debt that her step-mother is unable to repay. Also, her family will not accept her because she has a daughter born out of wedlock in Hong Kong. According to the applicant, her step-mother had borrowed a loan from a loan-shark. She was unable to repay her loan. She asked the applicant to repay the loan for her. The loan-shark called her and asked her to repay her step-mother’s loan or marry him, otherwise he would do harm to her family. Whilst she was working in Hong Kong, her step-mother called her for money to repay her loan. Her brother also called her and told her that the loan-shark had gone to their house for repayment of the loan. She had born a child out of wedlock in Hong Kong. She is unwilling to return to Indonesia for her own safety and for her daughter’s future. Details of her story can be found in paragraph 6 of the Director’s Decision dated 8 December 2014 (“the Director’s First Decision”) and paragraph 18 of the Board’s Decision.

The Director’s Decisions

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 First Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk for the reason that the level of risk of harm from the loan-shark and concern arising from her daughter upon her return was assessed to be low. In essence, the Director found (i) her fear of being harmed by the loan-shark is remote and not reliable and there is no real chance that she will be subjected to real risk of harm either now or in the foreseeable future if she returns to Indonesia [13(a)]; (ii) there is no indication that she and her daughter will face undue hardship in Indonesia [14e]; state protection will be available to her [15]; and internal relocation will be a viable option for her [16]. By the Director’s Notice of Further Decision dated 24 May 2017 (“the Director’s Second Decision”), the Director rejected her claim on BOR 2 risk as there was no evidence that she will be subjected to such risk upon her return to Indonesia. The Director’s First Decision and the Director’s Second are called “the Director’s Decisions”.

The Board’s Decision

7.The applicant appealed the Director’s Decisions to the Board. On 16 November 2018, the Board conducted an oral hearing for her appeal, during which she testified. Having considered the applicant’s evidence, the Board concluded that the applicant “has fabricated her claims in an attempt to extend her stay in Hong Kong” [64].

8.The Board supported its conclusion by its findings that she did not mention the claimed loan, which is crucial for her claim, in her evidence at the hearing [65]; that her evidence on her step-mother’s loan was quite vague and there was no documentary evidence to support the loan [66]-[67]; that her evidence of threats of death by the loan-shark was not credible [69]; that it would be unreasonable for her step-mother to ask her to bear the burden of repaying her loan as her father and brother were employed in an oil company [70]-[71]. The Board found at paragraph 77 of the Board’s Decision:

“I am satisfied that the Appellant does not fear returning to Indonesia because of a claimed loan and debt and because of threats that she or her family will be killed.”

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 7 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 said that she had difficulty in repaying her step-mother’s loan and she preferred to stay in Hong Kong.

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 an unreliable witness and she does not have real risk of harm if she returns to Indonesia. Having considered the Board’s Decision, it is clear that the Board was entitled to make the findings.

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

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

CONCLUSION

18.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 15^th day of August 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