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

HCAL 1838/2023

[2024] HKCFI 444

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1838 of 2023

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.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decisiondated 14 September 2023 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), her application is therefore dealt with on paper.

The applicant

3.The applicant is a national of the Indonesia.  She came to Hong Kong and worked as a domestic helper and was permitted to stay until 13 October 2021 or 2 weeks after termination of the contract whichever was earlier. She did not depart and overstayed since 14 October 2021.  On 1 November 2021, she surrendered to the Immigration Department and lodged her non-refoulement claim by way of a written signification of 8 November 2021.  She claimed that, if refouled, she would be harmed or killed by her ex-husband named Totok.

4.In short, the applicant claimed that she was holding a piece of land by her father-in-law in trust for her son.  Totok wanted the piece of land for his gratification on drinks, gambling and womanizing.  She refused to release the land to him.  He threatened to kill her if she returned to Indonesia.  The particulars of her story are set out in details in paragraph 6 of the Notice of Decision dated 29 December 2021.

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 by Totok upon her return to Indonesia is real and foreseeable [13] – [14]; (ii) state protection will be available to her [15] – [21]; and (iii) internal relocation is viable [22] – [27].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 11 September 2023, the Board conducted an oral hearing by video conference for her appeal as she was being detained by the Immigration Department.   

8.Having considered the applicant’s evidence, the Board came to the conclusions below:

“30. I am prepared to accept the appellant’s son inherited land from his grandfather. I have considerable doubts that any of the Appellant’s other claims are truthful. The Appellant’s evidence about the divorce and contact with her former husband was extremely inconsistent ….

56. I have not accepted the Appellant’s claims and I have found that integral aspects of her evidence are highly inconsistent and indicative of the fact that it has been fabricated. …”

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 13 October 2023 for leave to apply for judicial review of the Board’s Decision.

11.The applicant has raised the ground that if she returns to Indonesia, her life will be in danger.

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.

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 23^rd day of February 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