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

HCAL 2251/2019

[2024] HKCFI 3404

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2251 OF 2019

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office’s Decision dated 18 July 2019 (“the Board’s Decision”) dismissing her appeal against the Director’s Decision as described below, rejecting her non-refoulement claim.

2.The applicant asked for a hearing. She appeared before the Court on 18 November 2024.

The applicant

3.The applicant, aged 53, is an Indonesian. She last arrived in Hong Kong on 16 November 2008 to work as a foreign domestic helper. Her employment contract was prematurely terminated on 9 March 2009 and she overstayed since 13 March 2009. The applicant was arrested by the police on 26 April 2010. She made a torture claim on 19 July 2010, which was rejected on 28 June 2012. The applicant made a further non-refoulement claim on all applicable grounds other than Torture risk[1] on 22 November 2016. The claim was made on the basis that, if refouled, she would be harmed or even killed by her boyfriend because she was unable to repay him.

4.According to the applicant, her boyfriend supplied her with the necessary construction materials for renovation of her house in 2006. In January 2009, her boyfriend threatened her over the phone to pay for the construction materials, failing which he would cast black magic on her. The applicant last received a call from her boyfriend in February 2009, during which he repeated the same threat. Since then, she changed her number and had no further contact with her boyfriend.

5.The applicant had no knowledge about seeking protection from the police. She also considered internal relocation not viable because she lacked the necessary financial capability and had no relative to rely on elsewhere in Indonesia.

6.Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 5 December 2018 (“the Director’s Decision”).

The Director’s Decision

7.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”).

8.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 absence or low intensity and frequency of past ill-treatment from the applicant’s boyfriend indicated that he had no real intention to seriously harm or kill her [13]-[14]; (ii) there was no evidence showing that her boyfriend had the means to locate her anywhere within Indonesia [15]; (iii) state protection would be available [16]-[17] and (iv) internal relocation would be viable [18]-[21].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 10 May 2019, the Board conducted an oral hearing.

10.The Board found that the applicant at most experienced verbal threats from her boyfriend over the phone and there was also no evidence suggesting that she would be at risk from the Indonesian authorities. In any event, state protection and internal relocation would be available according to the country of origin information [38]-[61].

11.Based on such findings, the Board rejected the applicant’s claim on Persecution risk, BOR 2 and BOR 3 risk. The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

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

12.The applicant has filed Form 86 on 7 August 2020 for leave to apply for judicial review of the Board’s Decision.

13.In her affirmation in support of her application, the applicant has raised the grounds below to challenge the Board’s Decision:

(1) the Board had unlawfully fettered his/her discretion by refusing her appeal;

(2) the Board failed to its greater duty owed to her, a self-represented clamant;

(3) the Board’s Decision is unreasonable or irrational in the public law sense, or as a result of procedural errors or unfairness;

(4) the Board failed to attain advanced standards of fairness as life limbs are in jeopardy; and

(5) the adjudicator acted in a procedurally unfair manner in the dealing with her appeal and he had relied on the source of news which is not officially recognized, or it is simply hearsay.

DISCUSSION

14.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).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said she did not think the Board was wrong. Nevertheless, she asked the Court to review the Board’s Decision.

16.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.”

17.The applicant’s grounds under paragraph 13 are her bare assertions without any evidence in support. In view of what she said in Court, I find that she failed to raise any valid reason to challenge the Board’s Decision. There is no reason for the Court to interfere with the Board’s Decision.

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

DISPOSITION

19.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.