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Solikhin Susiyanti v Torture Claims Appeal Board / Non Refoulement Claims Petition Office And Another

Judgment Cited authorities 17 Cited in Precedent Map Related
Vincent
Judgment Date11 December 2019
Neutral Citation[2019] HKCA 1368
Year2019
Judgement NumberCACV392/2019
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV392/2019 SOLIKHIN SUSIYANTI v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 392/2019

[2019] HKCA 1368

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 392 OF 2019

(ON APPEAL FROM HCAL NO. 1801 of 2018)

________________________

BETWEEN
SOLIKHIN SUSIYANTI Applicant
(Appellant)
and
TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE 1st Putative Respondent
DIRECTOR OF IMMIGRATION 2nd Putative Respondent

________________________

Before: Hon Chu JA and S T Poon J in Court
Date of Written Submissions: 25 September 2019
Date of hearing: 3 December 2019
Date of Judgment: 11 December 2019

________________

JUDGMENT

________________

Hon S T Poon J (giving the Judgment of the Court):

1. This is the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) given on 16 August 2019 refusing to grant her leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 24 August 2018 dismissing her appeal against the decision of the Director of Immigration (“the Director”) dated 19 December 2017 rejecting her non-refoulement claim.

2. The applicant is an Indonesian national. She entered Hong Kong on 29 September 2013 and was given permission to remain for employment as a domestic helper until 3 May 2015. Her employment contract was prematurely terminated on 30 April 2014 and upon her application, she was granted an extension of stay as a visitor until 29 May 2014. However, she did not depart and overstayed since 30 May 2014. She surrendered to the Immigration Department on 14 May 2015. On 5 November 2015, she lodged her non-refoulement claim by way of written representation.

3. The applicant’s claim is based on her fear that she would be harmed or even killed by her husband as she intended to divorce him. The applicant’s claim was set out in details in [7] of decision of the Director, and summarised by the Judge in [3] to [4] of the CALL-l Form dated 16 August 2019, [2019] HKCFI 2044. In gist, the applicant married her husband in 1993 and the couple depended on their respective parents financially. In or about 2000, the applicant started to work as a domestic helper in Singapore and Hong Kong despite the disapproval of her husband because she wanted to earn money and planned financially for having a baby. The applicant returned to Indonesia in 2005 and then got pregnant. As the applicant found her husband had no intention to work and support the family, she wanted to divorce him. The first incident happened when the applicant was in five months’ pregnancy and her husband punched her in her jaw. After the first incident, her relationship with her husband turned sour and the husband threatened to kill her if she proceeded to divorce him. The second incident happened when the applicant was in six months’ pregnancy. She asked her husband for money for pregnancy check-up and her husband became angry and assaulted her. The applicant suffered back and shoulder injuries and she was prescribed with some medical cream to apply on her bruises which took her 10 days to recover. The third incident happened when the applicant’s son was six months old. When the applicant was waiting for bus with her husband, he suddenly hit her from behind and slapped her and hit her face with his fist. She did not seek medical treatment and only applied some medical cream. After the third incident, the applicant went to Hong Kong working as a domestic helper. During her stay in Hong Kong from 2006 to 2014, the applicant received death threats from her husband causing her to overstay in Hong Kong rather than going back to Indonesia.

4. By the decision dated 19 December 2017, the Director rejected the applicant’s claim having regard to the torture risk[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] grounds.

5. The applicant appealed the Director’s decision to the Board, which heard the appeal on 23 April 2018, during which she was assisted by an Indonesian interpreter. By a decision dated 24 August 2018, the Board dismissed the appeal. For the reasons set out in [43] to [52] of the decision, the Board found that the applicant’s account to be inconsistent and unreliable. Even on the basis of the applicant’s account of events, since the husband had not contacted either the appellant or their child over a period of twelve years, the Board did not consider that he would still be motivated to harm or kill the applicant because of the breakdown of their marriage. Further, her delay in seeking non-refoulement protection in Hong Kong casted doubts about the genuineness of her fear. For the aforesaid reasons, the Board found that the applicant had failed to establish a case in respect of any of the applicable grounds.

6. The applicant filed her Form 86 together with a supporting affirmation on 3 September 2018 seeking leave to apply for judicial review against the decisions of the Director and the Board. At the applicant’s request, the Judge heard the leave application at a hearing held on 21 March 2019.

7. In her supporting affirmation, she reiterated the background of her case and advanced the following grounds for seeking relief:

(1) The Director and the Board failed to conduct sufficient inquiry into the relevant country of origin (“COI”) condition.

(2) The Director and the Board failed to give reasons for their assessments of her claim on BOR 3 risk and their conclusions were lack of basis.

(3) The Director and the Board failed to take into account the psychological strain and threats directed to her by her husband.

(4) The Director and the Board did not provide sufficient basis to conclude that she would not be subjected to risk of torture or BOR 3 risk upon refoulement.

8. The Judge considered the intended judicial review not reasonably arguable and had no realistic prospect of success, and refused to give leave to apply for judicial review. He gave his reasons at [13] to [22] of the Form CALL-1 as follows:

“DISCUSSION

The Director’s Decision

13. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I had held that the applicant without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power than this Court to make investigations in the matter. The Board had considered his appeal and made its Decision.

14. Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549...

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