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

HCAL 1343/2019

[2023] HKCFI 2145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1343 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 14 May 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.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Indonesia.  She entered Hong Kong as a foreign domestic helper on 20 November 2017 and was permitted to remain for employment until 22 June 2019 or two weeks after termination of the employment contract, whichever was earlier.  On 4 December 2017, she attended the Immigration Department for investigation of suspected involvement in a false domestic helper employment contract case.  Investigation revealed that she had never worked and resided in the contractual address.  On 13 August 2018, she was convicted and sentenced to a total of two months’ imprisonment. By way of written representations dated from 18 August 2018 to 7 September 2018, the applicant lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her family members due to her marriage with her late husband of a different religion. 

5.According to the applicant, she married her Christian husband in around 1994.  The applicant was a Muslim and both families were against this marriage.  After the marriage, the applicant and her husband moved to Desa Sawo.  However, from 2000, the applicant had been suffering threats and assaults from her mother-in-law who insisted that the applicant should give her the applicant’s son.  In this premise, the applicant decided to work in Hong Kong and leave her son to the husband.  Whenever she returned to Indonesia for vacation, she would encounter her mother-in-law.  Meanwhile, in 2004, her husband suspected that she had an affair and demanded money from her.  In 2008, the applicant learnt that her husband had given their son to her mother-in-law.  The husband’s phone calls of threats escalated and the applicant stopped communicating with him in 2010.  Shortly after, the applicant was informed by her mother-in-law that her husband committed suicide.  She blamed her son’s death on the applicant and threatened to kill the applicant. In 2017, the applicant returned to Indonesia and was again assaulted by her mother-in-law.  Out of fear, the applicant decided to seek protection in Hong Kong.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 28 November 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 did not indicate a future risk of harm upon refoulement [12]-[14]; (ii)state protection would be available to her [15]-[17]; and (iii) internal relocation was a viable option [18]-[20].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 20 March 2019, the Board conducted an oral hearing for her appeal, during which she was assisted by an Indonesian interpreter [7].

9.The Board recapped the applicant’s claim [28]-[39], her grounds of appeal [40], and her oral evidence at the hearing [41]-[50].  Having considered the evidence, the Board found that the applicant was not a witness of truth [53].  In particular, the Board found that the applicant’s evidence in relation to the assaults by her mother-in-law was inconsistent [54]; that her stay with her parents-in-law contradicted with her claimed fear of harm from them [55]; that her additional claim about her husband’s assaults was fabricated [56]; that the applicant’s assertion that her mother-in-law blamed her for her husband’s suicide was implausible [57]; that the applicant’s delay in lodging the non-refoulement claim undermined her credibility [58]; and that she failed to offer cogent explanations for the delay [59]-[60].

10.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

11.The applicant has filed Form 86 dated 20 May 2019 for leave to apply for judicial review of the Board’s Decision.

12.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

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 Decision 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, 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.

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 24^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