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

HCAL 1808/2020

[2024] HKCFI 158

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1808 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 3 September 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 25 October 2023.

The applicant

3.The applicant is a national of the Indonesia. She came to Hong Kong and worked as a domestic helper in December 2014. Her recent contract allowed her to stay as a domestic helper until 16 February 2018. Her contract was prematurely terminated, but she did not depart. She overstayed since 14 March 2017. She surrendered to the Immigration Department on 18 April 2017. She was convicted of the offence of overstaying and received a suspended sentence from the court. On 17 August 2017, a Removal Order was granted against her. She did not answer her recognizance. She was arrested for staying without the Director’s permission and also for taking up unapproved employment in Hong Kong, for which she was sentenced to 15 months’ imprisonment. By written submissions respectively dated 15 July 2019 and 14 August 2019, the application made her non-refoulement claim. At present, she is being detained in Nei Kwu Correctional Institution.

4.In short, the applicant claimed that between 2013 and 2015, her husband had borrowed money from 4 different creditors, one being his grandmother. He was unable to repay his loans. He suggested that she marry or form an intimate relationship with one of the creditors who was wealthy for settlement of his loans. She refused, whereupon her husband beat her and burn her arms with cigarettes butts. She was injured but did not go to see a doctor. Nor did she report the matter to police. The creditors and their underlings came to the family to look for her husband. She was once beaten up by the underlying of one of the creditor, with whom her husband to form intimate relationship. In 2015, she came to Hong Kong for domestic work. She did not have contact with her husband. She had no comments on state protection and she did not believe internal relocation would be feasible as the creditors were well-connected. Details of her story are contained in paragraph 6 of the Notice of Decision dated 20 January 2020 (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 that: (i) there are no substantial grounds to believe that the claimed future risk of harm upon her return to Indonesia is real and foreseeable [13]; (ii) state protection will be available to her [14]- [17]; and (iii) internal relocation is viable [18].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 29 June 2020, the Board conducted an oral hearing for her with an interpreter.

8.Having considered the applicant’s evidence [44]-[54], the Board came to the conclusions below:

“55. Taking the above analysis into account, even though I bear in mind the relatively low standard of proof on the part of the Appellant, I still have great reservations on her credibility. I just cannot be sure if the issue of her husband’s debts and the threats from the various parties ever existed. As such, her evidence is not accepted.

56. In principle, without the acceptance of the Appellant’s version by me, there is no basis for her to support her claim. …

[The Board continued to consider each of the applicable risks.]

91. The evidence of the Appellant was found to be incredible and unreliable. Bearing in mind the low standard of proof on the part of the Appellant, and for the above analysis, I find the Appellant unable to establish a real risk pertinent to any of the applicable grounds under the Claim.”

9.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

10.The applicant has filed Form 86 dated 10 September 2020 for leave to apply for judicial review of the Board’s Decision.

11.The applicant submitted in court that she was free to express herself before the Board. But she does not want to return to Indonesia because the police cannot protect and they are corrupt.

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.

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.For the reasons given in paragraph 8 above, the Board found that the applicant’s evidence was not credible and she had failed to establish that she has any real risk of harm as she alleged if she returns to Indonesia. In my view, the Board was entitled to come to the conclusions as it had done.

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 25^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