SUNARTI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

HCAL 786/2023 [2023] HKCFI 1959 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 786 of 2023 BETWEEN Sunarti Applicant and Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent and Director of Immigration Putative Interested Party 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. THE APPLICATION The applicant applies for leave to apply for judicial review of the Decision dated 30 March 2023 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”). The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, her application is therefore dealt with on paper. The applicant The applicant is a national of Indonesia. She entered Hong Kong on 28 December 2019 as a foreign domestic helper and was permitted to stay until 28 December 2021 or two weeks after the termination of her employment contract, whichever was earlier. On 29 July 2021, her employment contract was prematurely terminated. She did not depart within the time limit and had overstayed since 13 August 2021. On 10 January 2022, she was arrested by the police for overstaying. On 12 January 2022, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her husband. In short, the applicant acted as her friend’s guarantor in a loan in around February 2018. However, her friend never repaid the loan. In August 2018, the lender visited the applicant’s house and asked her to repay the loan on her friend’s behalf. Her husband was furious upon knowing the existence of the loan and assaulted the applicant. Terrified, the applicant left the house. Later, the applicant’s husband repaid the loan for the applicant. He then became the applicant’s creditor. Her husband had been visiting her mother since then to collect the loan payments. However, after her employment contract was prematurely terminated, she was unable to repay the loan. Out of fear, the applicant decided to seek protection in Hong Kong. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 14 June 2022 by the Director (the “Director’s Decision”). The Director’s Decision The Director considered the applicant’s claim in relation to the following risks: risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”); 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”); 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 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”). By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the past experience indicated that the risk of harm upon her refoulement was low [13]; (ii) state protection would be available to her [14]; and (iii) internal relocation was a viable alternative [15]. The Board’s Decision The applicant appealed the Director’s Decision to the Board. On 1 March 2023, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter [26]. At the outset, the Board sought clarifications with the applicant as to the allegation that the Director ignored her new evidence. In the end, the applicant confirmed that she did not provide any new evidence. The Board found that her vague and vacillating evidence about the new evidence weighted against her credibility and her ignorance about the content of the notice of appeal also undermined the credibility of her claim [30]. The Board also noted that the applicant’s evidence about what happened among herself, her husband and the creditor was inconsistent [31]-[32]. When inquired about the background of her friend and their relationship, the applicant was evasive and her evidence inconsistent [33]. Meanwhile, the Board noticed that the applicant added a new claim that her husband assaulted her twice [34]. She also added new claims that she was close with her friend and they were once in the same clothing business [35]. Nevertheless, the Board found that the applicant’s claim contained multiple material inconsistencies and most were vague and evasive. Meanwhile, her explanations were non-persuasive. Therefore, the Board refused to accept the applicant as a credible witness and rejected her claim. As a result, on the basis of lack of credibility, the applicant’s appeal was dismissed. Application for leave to apply for judicial review of the Board’s Decision On 22 May 2023, the applicant filed Form 86 for leave to apply for judicial review of the Board’s Decision. The applicant has filed an affirmation, in which she enclosed the Board’s Decision, but did not set out any specific ground in support of her application. DISCUSSION 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). The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. 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.” The Board had, for the reasons given above, rejected the applicant’s evidence in support of her claim. There is no valid ground from the applicant to challenge the Board’s Decision. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review. CONCLUSION I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application. Dated the 2nd day of August 2023 (M.O. WONG)(Ms) for Registrar, High Court 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 Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must: a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). Sent to the Applicant on 2/8/2023 Sunarti Applicant’s ref. no: Nil. Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 2/8/2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 20495 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 197/22 (Formerly RBCZ/5000068/22) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) Form CALL-1