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

HCAL 1532/2021

[2024] HKCFI 909

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1532 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.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 8 October 2021 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 41, is a national of Indonesia.  She came to Hong Kong to work as a domestic helper in 2018. Her employment contract was prematurely terminated, but she did not depart. She overstayed since 20 March 2020. She was arrested by Immigration Department for the offence of breach of condition of stay and for using a forged identity card, for which she was sentenced for 15 months’ imprisonment. She lodged her non-refoulement claim by way of written significations respectively dated 2 December 2020 and 11 January 2021 on the ground that, if refouled, she will be ill-treated or killed by Mr. Bustomi (“Mr B”) as she had private disputes with him.

5.Briefly stated, the applicant married Mr. B in 2011. The marriage was not a good one as they quarreled frequently. She was pregnant in 2012. But her husband did not like to have a baby. He told her to have abortion and she refused. On one occasion, Mr B attempted to cause abortion to her by dropping her as a pillar passage of his motorbike. She gave birth to a daughter and asked her mother to look after her daughter as she refused to live with Mr B after the incident. She left Indonesia to work in Taiwan, Singapore and Hong Kong. She learned from her mother that Mr B took away her daughter. He demanded money from her. She complied with his demand. However, she learned that Mr B had married other women under Muslim religion. She stopped remitting money to him. She returned to Indonesia where she instructed a lawyer to divorce Mr B. The court in Indonesia gave her the custody of her daughter and ordered her to pay 20 million Indonesian currency to Mr B. She refused to pay. Mr B kept the custody of the daughter. Mr B told the applicant that he was willing to marry her again, but if she refused, he would kill her and her daughter if she returns to Indonesia. She said that state protection is not possible as she does not have money to bribe the police. Nor is she able to live in other places as she has no money and she has nobody to support her. Before the Board, she added information that Mr B is a powerful gangster with guns and swords and he has wide connection with the police and government officials in Indonesia. Details of her story can be seen from paragraphs 27 and 28 of the Board’s Decision.

The Director’s Decision

6.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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that: (i) the low intensity and frequency of past ill-treatment from Mr B indicate that future harm in Indonesia is not likely to materialize [12]; (ii) state protection will be available to her upon her return [19]-[21]; and (iii) internal relocation is viable [22-[23].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 6 October 2021, the Board conducted an oral hearing for her with an interpreter.

9.Having considered the applicant’s evidence [46]-[52], the Board came to the conclusion that the applicant failed to substantiate her claim and she may relocate to live in Bali without undue hardship [62]. Therefore, the Board found the applicant was unable to substantiate her claim on the applicable risks [64]-72].

10.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

11.The applicant has filed Form 86 dated 4 November 2021 for leave to apply for judicial review of the Board’s Decision.

12.The applicant has not raised any specific ground in support of her application in her affirmation.

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, but she does not want to go back to Indonesia.

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.For the reasons given in paragraph 9 above, the Board found that the applicant failed to show that there is a real risk that she may be harmed or even killed by her former husband if she returns to Indonesia. Having considered the Board’s Decision, I am of the view that the Board was entitled to make such conclusion.

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 April 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