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

HCAL 3726/2019

[2024] HKCFI 686

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3726 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.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 22 November 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”), she appeared before the Court on 11 December 2023.

The applicant

3.The applicant, aged 44, is a national of Indonesia. She last entered Hong Kong on 31 July 2007 to work as a domestic helper. Her employment contract was prematurely terminated. She applied for extension of time to stay in Hong Kong. She was allowed to stay until 7 November 2008. She did not depart and overstayed since 8 November 2008. On 28 March 2012, she was arrested by police and referred to the Immigration Department. On 3 April 2012, she was convicted and sentenced to 12 weeks’ imprisonment.

4.On 4 June 2012, she lodged her torture claim under Part VIIC of the Immigration Ordinance (“the Ordinance”) on the ground that if refouled, she will be forced to marry her creditor Pramono who may kill her if she refuses because she has not settled her debt. She also fears that her father will beat her up and even kill her because her parents disapprove her marriage with a Bangladeshi in Hong Kong. She is afraid of living a life of homelessness and destitution.

5.The Director rejected her torture claim by a Notice of Decision dated 24 May 2013 (“the Director’s First Decision”) for the reasons that (1) her claimed threat did not amount to torture as defined in section 37U(1) of the Ordinance; and (2) the Director did not accept that she would be subjected to any real risk of torture if she returns to Indonesia as, apart from reason (1), she will obtain state protection and there are legal support groups in Indonesia to render assistance to her as according to the country of origin information (“COI”).

6.The applicant then, for the same reasons, lodged a non-refoulement claim to the Director by written representation dated 23 July 2013 on BOR 2 risk, BOR 3 risk and Persecution risk as described below.

7.According to the applicant, she and her father had borrowed money from Pramono and they were unable to repay the debt. Pramono proposed to marry her for the settlement of the debts. She refused because Pramono was a married man. She went to work in Singapore and later came to Hong Kong and worked as a domestic helper. She remitted money to her father for settling the debts. But the interest is too high and her remittance was insufficient to settle the debts. Pramono had brought his relative, who was a police officer, to her father’s house to demand repayment of the debts. Her father was unable to pay off the debts, whereupon Pramono took the deed of the family house and dispossessed the family of the house. Her family had moved to live in somewhere else. According to the applicant’s sister in Indonesia, Pramono is still looking for her and he is persistent to marry her.

8.Meanwhile, she had married a Bangladeshi in Hong Kong. She informed her father about this. Her father was angry because the marriage was without his consent. Her father threatened that he will kill her if she returns to Indonesia. Details of her story are set out in paragraph 9 of the Director’s Notice of Decision dated 16 April 2018 (“the Director’s Second Decision”).

The Director’s Second Decision

9.As the Director had considered and rejected the applicant’s torture claim, 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”).

10.By way of the Director’s Second Decision, the Director dismissed the applicant’s claim.  The Director found that: (i) the risk of being harmed by Promono or her father upon return to Indonesia was assessed to be low [16]-[17]; (ii) state protection will be available to her upon her return [18]; (iii) internal relocation is viable [19] and (iv) the applicant’s case failed to meet any of the requirement under BOR3 risk [20]-[22]; BOR 2 risk [23]-24]; and Persecution risk [26]-[30].

The Board’s Decision

11.The applicant appealed the Director’s Second Decision to the Board. On 29 January 2019, the Board conducted an oral hearing.

12.Having considered the applicant’s evidence, the Board came to the following conclusion:

“113. … the Adjudicator finds the Petitioner is not a witness of truth, and the Adjudicator does not accept the Petitioner has told the truth about why she does not wish to return to Indonesia.

114. On the evidence before it, the Adjudicator does not accept the Petitioner’s father took one or two loans from the loan shark named Prarmono. Also, the Adjudicator does not accept the Petitioner took a loan from a loan shark Pramono. …The Adjudicator does not accept the loan shark has threatened to force the Petitioner to marry him, when she returns to Indonesia….The Adjudicator does not accept the Petitioner’s father has threatened her or would harm her for this reason, or for any other reason, if she returned to Indonesia.

116. For the above reasons, the Adjudicator finds 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.”

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

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

14.The applicant has filed Form 86 dated 16 December 2019 for leave to apply for judicial review of the Board’s Decision.

15.In support of her application, the applicant said in her affirmation that the Director had not processed her case properly. The Decision is unfair and unreasonable. The police cannot provide protection for her. Her enemies had gone to her house in Indonesia. She cannot live in another city safely. As she can only apply for leave for judicial review the Board’s Decision, her reference to the Director will be taken as referring to the Board instead.

DISCUSSION

16.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).

17.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant confirmed that she was free to speak before the Board. She agreed that the Board was not wrong in its decision.

18.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.”

19.As the applicant agrees that the Board was not wrong in its decision, the grounds raised by her in paragraph 15 are irrelevant for argument.

20.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

21.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 14^th day of March 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