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

HCAL 1125/2019

[2023] HKCFI 2078

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1125 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.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 12 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s 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 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 as a foreign domestic helper on 1 September 2014 and was permitted to stay until 29 July 2016 or two weeks after the termination of her employment contract, whichever was earlier. On 26 May 2015, her employment contract was prematurely terminated. On 3 June 2015, she was arrested by the Hong Kong police for using a forged identity card. On 25 June 2015, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed, killed by her husband or even be sold to the creditor of her husband because she failed to help him repay the loan.

5.In short, the applicant had been in an abusive marriage since she married her husband in around 1989. In Mid-2007, she worked in Singapore, partly to avoid the physical abuses by her husband. She returned home in around 2009 but was urged to work overseas again to support her family. Since 2010, she had been working in Hong Kong. In around August 2012, she returned home for vacation. During that period, she was informed of her husband’s debts and the creditor’s chasing for repayments. She was able to settle the first loan. However, her husband took out another loan in around 2013. In her second vacation back home in 2014, she was verbally threatened by her husband that if she failed to settle his debt again, she would be killed. While she had ceased contact with her husband in 2014, she feared that the death threats would be materialized as she lost her job and was unable to repay the debts. Thus, she decided to seek protection in Hong Kong. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 21 August 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. In elaboration, the Director found that (i) the past events and her own behaviors indicated an unlikelihood of future risk of harm [14]-[19]; (ii) state protection would be available to her [20]-[27]; and (iii) internal relocation was a viable option [28]-[32].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 14 December 2018, the Board conducted an oral hearing for her appeal, during which she clarified certain matters in her claim [40].

9.The Board recapped the applicant’s claim and her personal background [19]-[38]. Having consider the evidence, the Board casted doubt on her evidence [43]. For example, she had no details of the outstanding loan and the information of which relied on the hearsay evidence from her mother in law [44]. It was also illogical that her husband would allow her to return to work in Hong Kong when he threatened to destroy her passport and sell her to the creditor [45]. Meanwhile, there was a time gap between her husband’s threat and the applicant’s departure, during which nothing eventful happened to her [46]. Besides, the applicant had not sought assistance from the Indonesian authorities [47]. Alternatively, the applicant was never seriously injured by her husband [51] and it was only a domestic violence dispute without state involvement [54]. In any event, internal relocation was a viable option [56]-[59].

10.For the aforesaid findings, the Board rejected the applicant’s claim and dismissed her appeal.

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

11.The applicant has filed Form 86 dated 26 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant said that the Board disregarded her dangerous situation.

DISCUSSION

13.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).

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

15.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.”

16.The Board had, for the reasons given in paragraph 9 above, rejected her evidence.

17.The applicant has raised no valid ground 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 to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 23^rd 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