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

HCAL 944/2021

[2023] HKCFI 2839

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 944 of 2021

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 21 June 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), she appeared the Court on 28 August 2023.

The applicant

3.The applicant is a national of Indonesia. She entered Hong Kong on 15 May 2018 to be employed as a domestic helper but her contract was prematurely terminated on 19 July 2019. She did not depart and became an over-stayer on 3 August 2019. Nearly a year later on 20 August 2020, she surrendered to the Immigration Department. On 21 September 2020, she lodged a non-refoulement claim on the basis that she would be harmed or killed by her husband (Sukarmin) if she is refouled to Indonesia.

4.In short, the applicant claimed that Sukarmin has been abusive ever since the start of their marriage as he was unemployed and would simply get drunk at home. Whilst inebriated, he would physically assault her. But as she still loved him, she did not report this matter to the police. In mid-2015, she was pregnant for two months and one day when Sukarmin was unable to find her when he came home, he began beating her again. She fainted from the attack after she was hit on the head and learnt later that a neighbor had brought her to the hospital. Sadly, she discovered she had suffered a miscarriage after the attack and had to be hospitalized for a month. When the police arrived to take her statement, Sukarmin was near her bedside and as she did not want him to be imprisoned, she did not sought assistance from the police. After she was discharged from the hospital, her marriage initially improved but Sukarmin relapsed to his old habits of drinking a few months thereafter. When she could no longer endure the abuse, the applicant sought employment overseas and was able to obtain work as a domestic helper in Taiwan from March 2016 to August 2017. Thereafter, she sought similar work in Hong Kong. As to the current situation, the applicant claimed her last contact with Sukarmin was in 2017 but she later clarified he would still contact her (via friends or her mother) to send him money. Details of her claim are set out at [6] of the Notice of Decision dated 14 January 2021 by the Director (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. In elaboration, the Director found the following: (i) the level of risk of harm from Sukarmin upon her return to Indonesia was assessed to be low as the problems between them were private in nature; and in addition, there was no indication Sukarmin had the means to locate her if she was refouled [11] – [15]; (ii) her conduct in Hong Kong was inconsistent with someone seeking asylum as she waited nearly a year before claiming non-refoulement protection [16]; (iii) her claim that the Indonesian police cannot protect her was not accepted as they had in fact offered help when she was hospitalized and it was her own volition not to seek their assistance [17]; (iv) state protection would be available to her [18] – [21]; and (v) internal relocation would be a viable option for her [22] and [23].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 1 April 2021, the Board conducted an oral hearing for her appeal.

8.The Board recapped the applicant’s background and claim [23] – [37]. In essence, the Board proceeded to consider the factual basis of her claim under each individual grounds of non-refoulement protection [49] – [65]. It found that the ill-treatment by Sukarmin did not attain a minimum level of severity to fall within the scope of BOR 3 Risk and in relation to Persecution Risk, it held the incidents were private in nature and was also not within the scope of Persecution Risk [49] – [59]. As for BOR 2 Risk and Torture Risk, the Board found the former to be unsubstantiated and the latter was assessed to be low, which in any event did not involve the Indonesian government [60] – [65]. Lastly, the Board also held that internal relocation was a viable option given she is an abled body adult who can find work in other parts of Indonesia [66] – [71].

9.For the above reasons, the Board found the applicant’s claim failed on all applicable grounds 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 5 July 2021 for leave to apply for judicial review of the Board’s Decision.

11.The applicant has raised no specific ground in support of her application in her affirmation.

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 Decisions should be examined with rigorous examination and anxious scrutiny. Before the Court, the applicant said she was at liberty to express herself at the hearing and she understood the Board’s Decision. She asked for one more year to stay in Hong Kong.

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 dismissed her appeal on the reasons given in paragraph 8 above. They are valid reasons.

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

Dated the 16^th day of November 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