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

HCAL 984/2019

[2023] HKCFI 2521

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 984 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 present 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 4 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for her and she appeared before the Court on 8 February 2023.

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 18 May 2010 and was permitted to stay on employment until 11 June 2011, or two weeks after the termination of the employment contract, whichever was earlier. On 28 December 2010, her employment contract was prematurely terminated. She applied for extension of stay on visitor condition and her application was granted. She was allowed to stay as a visitor until 3 February 2011. She did not depart and had overstayed since 4 February 2011. On 29 December 2011, she was arrested by the police for overstaying. On 10 June 2013, she lodged a torture claim, which was rejected on 13 November 2013. Upon the commencement of the unified screening mechanism, her claim was then assessed on all applicable grounds other than that on torture risk[1].

5.The applicant’s claimed risk of harm was from her debt collector because of an outstanding loan and from five men who were the leaders of the political party due to her witness of their involvement in an attempted rape in her locality. According to the applicant, her parents borrowed a loan in early 2005 from a bank in Ponorogo called BRI. However, they defaulted the monthly payments after the first five installments. One day in mid-2005, three men visited their house. One of them claimed to be the bank staff and the other two claimed to be gangsters. They threatened to confiscate the applicant’s family properties, send her family members to prison and kill them if they failed to settle the loan. During the applicant’s stay at home, the enemies visited her house seven times. One day in the end of 2005, the applicant witnessed an attempted rape by five men. The attackers assaulted the applicant and threatened to kill her if she reported the matter to the police. Feared of the threats, the applicant escaped to Surabaya, where nothing eventful happened.

6.Later, the applicant came to Hong Kong for work. She learnt from her parents that the debt collectors still visited their house. In 2008, the applicant returned to her home village for two weeks for vacation. In this period, she did not encounter any problems, neither from the debt collectors nor the five attackers. In July 2010, she had last contact with her family who told her about the continuous harassments from the debt collectors. In the end of 2017, she learnt that the five attackers started to harass her family. Out of fear, the applicant sought protection in Hong Kong. Details of her claim are set out at paragraph 11 of the Notice of Decision dated 25 May 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

7.The Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  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

c.  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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [19]-[22]; (ii) state protection would be available to her [23]-[27]; and (iii) internal relocation was a viable option [28].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 14 January 2019, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter in the Indonesian language [5].

10.The Board recapped the applicant’s claim and her personal backgrounds, as well as her accounts at the hearing [20]-[38]. Having considered the evidence, the Board found that the applicant was not a credible witness. In particular, the Board considered that it was implausible that the bank staff would threaten her or she was at a risk of harm from the bank because of her parents’ default [40]-[41]. It also rejected the applicant’s claim of the rape incident [42]. It noted that the applicant could not recall any details of the alleged incident [43]-[44] and thus rejected her claimed risk of harm from the five attackers [45]. The Board further rejected the applicant’s claimed fear of harm arising from her alleged conversion to Christianity as it was not persuasive and there was no evidence that her family would harm her even if she was converted [46]-[50].

11.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

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

13.In her affirmation in support of her application, the applicant raised the grounds as summarized below.

(1)  Procedural impropriety: failure to properly apply para 2 of the UN committee against Torture General Comment No. 2 whereby satisfaction of a Nation states obligation to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event; failed to conduct sufficient research into the relevant COI; failed to make research into BOR 3 risk; no sufficient basis to conclude that she would be safe to return to her country.’

(2)  Error or misdirection in law: failing to take into account the considerations of psychological strain and threats to her.

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 Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said she was free to express herself before the Board.

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, having considered the evidence, had rejected her story in support of her claim. Those grounds in paragraph 13 above do not assist her application. They are either bare assertions or her comments without evidence in support. She had raised no issue on her psychology or psychiatric condition before the Board. She cannot complain that the Board had not called for the psychological or psychiatric reports.

18.The applicant has raised no valid ground to challenge the Board’s Decision. 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 17^th day of October 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