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

HCAL 1542/2020

[2024] HKCFI 36

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1542 of 2020

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.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 7 May 2020 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”), she appeared before the Court on 30 October 2023.

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, aged 42, is a national of Indonesia. She came to Hong Kong to work as a domestic helper since 2003. She returned to her country after termination of her contracts. She last came to Hong Kong to work as a domestic helper on 1 June 2010. Before termination of her contract, she was arrested for theft and possession of dangerous drug and was convicted and sentenced to 4 months’ imprisonment for theft and 4 months’ imprisonment suspended for 2 years. She lodged her torture claim whilst being detained. Her application was rejected by the Director. However, she was arrested and convicted of the offence of taking employment without the Director’s permission, for which she was sentenced to 14 months’ imprisonment. The applicant lodged her non-refoulement by written signification respectively dated 17 October 2013 and 27 June 2018 on the basis that, if refouled, she will be harmed or killed by her husband because she failed to remit money to him.

5.According to the applicant, she married her husband in Indonesia and their marriage did not work well. Her husband hit her from time to time by slapping her. She did not report to police. She could not tolerate with her husband’s violence, so she worked in Hong Kong. She remitted money to her parents only, not to her husband and he was angry with her. In 2007, she returned to Indonesia, her husband hit her for not remitting money to him. In 2009, she returned to Indonesia, her husband assaulted her with a hot kitchen utensil, which caused a scar in her right palm and she had to receive medical treatment. She did not report this incident to police too. In 2011, she was convicted of an offence of theft in Hong Kong. Her husband knew about it and was furious. He threatened to kill her if she returns to Indonesia. She dared not return to Indonesia. Now she has lost contact with her parents and her husband. She said that she may not have state protection as the police and officials are corrupt. Nor can she relocate herself as she has no other relatives to rely on and she will be found by her husband if she lives in the same house. Details of her story can be found in paragraph 9 of the Director’s Decision dated 15 January 2019 (“the Director’s Decision”).

The Director’s Decision

6.The Director had rejected her torture claim. Therefore, 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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) the low intensity and frequency of past ill-treatment inflicted on her by her husband is indicative of low future risk of harm upon her return to Indonesia [18] and there is no evidence to show that her husband intends to kill her [20]; (ii) state protection will be available to her upon her return [22]-[25]; and (iii) internal relocation is viable [25]-[26].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 26 June 2019, the Board conducted an oral hearing for her with an interpreter.

9.Having considered the applicant’s evidence [42]-[72], the Board came to the conclusion below.

“73. For the reasons above, the Adjudicator finds the Petitioner is not a witness of truth, and the Adjudicator is not satisfied that the Petitioner has told the truth in relation to critical aspects of her claim.

[The Board rejected the facts that her husband was violent and assaulted her; that she had sustained the scar on her right palm in the circumstances she described; that her friend told her that her husband was angry about her committing theft; and that she has nowhere to return to in Indonesia.]

79. In light of the findings above, the Adjudicator considers the Petitioner would not be at a real risk of any harm if she returned to Indonesia. The Adjudicator finds that there is not a real risk the Petitioner would face any of the proscribed forms of harm should she return to Indonesia.”

10.For the above reasons, the Board dismissed her appeal.

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

11.The applicant has filed Form 86 dated 23 July 2020 for leave to apply for judicial review of the Board’s Decision.

12.The applicant has raised the grounds below in support of application:

“I am not satisfied with the decision given by Torture Claim appeal board. I cannot go back to my country at the moment because my life is not save [safe] in my own country. Please help me to stay here until my problem will be solved.”

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. Before me, the applicant said she understands the Board’s Decision and she is unable to say whether the Board was wrong. However, she wants the Court to re-consider her case.

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.From the Board’s Decision, the adjudicator had asked the applicant quite a lot of questions and had allowed her to give explanation to the issues he had raised with her. In my view, the Board was entitled to come to its views above.

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

Dated the 11^th day of January 2024

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