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

HCAL 2126/2019

[2024] HKCFI 3010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2126 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 26 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. She appeared before the Court on 16 October 2024.

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 44, is an Indonesian. She last arrived in Hong Kong as a visitor on 9 December 2007 and she overstayed since 12 December 2007. The applicant was arrested by the Immigration Officers for overstaying and taking up unapproved employment on 23 December 2008. She was sentenced to imprisonment of 16 weeks for the said offences on 26 December 2008.

5.On 27 April 2009, the applicant made a torture claim. After she gave birth to her son on 13 July 2009, she also made a torture claim on his behalf on 8 June 2011. The applicant and her son’s torture claims were rejected on 25 November 2011 and they made a further non-refoulement claim on all applicable grounds other than Torture risk[1] on 27 September 2013. The claim was made on the basis that, if refouled, the applicant’s parents would not accept her and her son because she gave birth to him out of wedlock. For the same reason, the applicant also feared that she would be ill-treated by people in the Indonesian society and that she might even be stoned to death. Subsequently, her son’s status as a permanent resident of Hong Kong was established and no further action was taken regarding his non-refoulement claim.

6.According to the applicant, she got married in 1999 and she first came to Hong Kong to work as a foreign domestic helper in 2001. In 2007, she acquainted with a man in Hong Kong and later got pregnant for him. When the applicant informed her parents about her pregnancy in 2008, they told her that she would not be accepted as she had brought disgrace to the family. After the applicant gave birth to her son on 13 July 2009, she called her parents again and was told that she could only return to Indonesia alone without her son because he was born illegitimately. Meanwhile, given that Indonesia is a conservative Muslim country, she feared to be punished by people in her community because of her pre-marital pregnancy and that she might even be stoned to death.

7.The applicant was of the view that she could not seek protection from the police because they were also Muslims and hence would share the same view. She also considered internal relocation not viable because she would face discrimination as a single mother.

8.Details of the applicant’s story can be found in paragraphs 13-32 of the Director’s Decision dated 12 December 2017 (“the Director’s Decision”).

The Director’s Decision

9.The Director considered the applicant’s claim in relation to the following risks:

a. According 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 Decision, the Director dismissed the applicant’s claim on Persecution risk, BOR 2 and BOR 3 risk. The Director found that (i) the applicant’s entire claim was based on speculation [40]-[41], (ii) state protection would be available and there are also non-government organisations to provide the necessary assistance [42]-[48] and (iii) internal relocation would be viable [49]

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board. On 21 December 2018, the Board conducted a hearing.

12.The Board found that the applicant’s claimed fear are self-induced and speculative. She confirmed that her parents are willing to accept her and there are also organisations to assist her. Meanwhile, the practice of “stoned to death” is only confined to one province in Indonesia and is also against the Constitution of Indonesia. Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk or Persecution risk [10]-[15], [31]-[41]. In any event, internal relocation would also be available [42]-[46].

13.The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

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

14.The applicant has filed Form 86 dated 24 July 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 she and her son would not be accepted by the society because her son is illegitimate. She would also be sentenced to “stone to death” in Islam law.

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 the Board’s 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 said that her husband had disappeared and her son is now 15 years old. He has not lodged the claim because his father is a Hong Kong resident and he is now a Hong Kong resident.

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.The Board had already taken into consideration those grounds raised in paragraph 15 and dismissed them as the valid ground in support of her claim. The applicant has raised no valid ground to challenge the Board’s views.

20.The applicant has raised no valid ground to challenge the Board’s Decision.

21.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

22.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

The applicant appeared in person.