IRIN SUSANTI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1731/2018

[2020] HKCFI 1876

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1731 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

(1)      Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 30 September 2015 be refused; and

(2)      Application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 30 September 2015 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant appeared before the Court.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by deleting the Director of Immigration (“the Director”) and replacing him with the Board as the proposed respondent.

The applicant

4.  The applicant is an Indonesian national. She came to Hong Kong on 30 July 2011 as a domestic helper. Her employment terminated in 2013. She asked for extension of stay, which was granted for her stay until 13 September 2013. She overstayed. On 14 July 2014, she was arrested by police for overstaying and possession of dangerous drug. She was convicted and sentenced to 10 months’ imprisonment. She made a non-refoulement claim on 30 November 2014.

5.  In support of her claim, she said that if refouled, she feared that she would be harmed or killed by her step-father Sunardi because of her disclosure of his rape on her.

6.  The applicant claimed that her father passed away and her mother married to Sunardi in 2005. She worked in Hong Kong as a domestic helper in 2007 and remitted money to her mother in Indonesia. In September 2010, she finished her employment contract in Hong Kong and returned to Indonesia for holiday and waited for the next employment. However, when she was alone at home, Sunardi raped her and warned her not to tell anyone else he would kill her. In March 2011, she came to Hong Kong to take up her job as a domestic helper again. Her contract was terminated prematurely. In a telephone conversation, she told her mother about her having been raped by Sunardi. Her mother had a big fight with Sunardi and finally divorced him. Sunardi had known that she had told her mother about the rape. She dared not return to Indonesia because Sunardi may find her.

The Director’s Decisions

7.  The Director considered her application in relation to the following risks:

a.     risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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”).

8.  By Notice of Decision dated 22 April 2015 (“the Director’s Decision”), the Director refused her claim on the Torture risk, BOR 3 risk and Persecution risk for the reason that her claim was not substantiated.  The Director found that the level of risk of harm from Sunardi upon her return was low [14]; there were avenues to seek justice available to her [18]; internal relocation was an option open to her [20].

9.  By Notice of Further Decision dated 29 March 2018 (“the Director’s Further Decision”), the Director found that the applicant failed to establish her claim under BOR 2 risk. However, the applicant did not appeal against the Director’s Further Decision to the Board.

The Board’s Decision

10.  The applicant appealed to the Board against the Director’s Decision. The Board, having considered the matter and the authority of ST v Betty Kwan and Others CACV 115/2013, decided that the appeal could be dealt with justly without an oral hearing.

11.  By the Board’s Decision, the Board rejected her appeal and confirmed the Director’s Decision.

12.  The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusion that having been raped by Sunardi did not amount to torture within the meaning under Part VIIC of the Ordinance or under BOR 3 risk; that there was no evidence that the state was involved in the incidence; that state protection would be available for her fear and that there was no evidence for her to establish Persecution risk. See paragraphs 36-55 of the Board’s Decision. Also, the Board found that relocation was an option open to her (56-58).

Application for leave to apply for judicial review

13.  The applicant filed Form 86 on 23 August 2018 for leave to apply for judicial review of the Board’s Decision.

14.  In her affirmation in support of her application, she only submitted that the Board’s Decision was unreasonable and unfair without any reasons or particulars in support.

DISCUSSION

15.  Her application is late as the Board’s Decision is dated 30 September 2015 and she filed Form 86 on 23 August 2018. Under Order 53, rule 4(1) of the Rules of the High Court, the application has to be made promptly and in any event within 3 months from the date when the grounds of the application first arose unless the Court extends the time for her to make the application. This Court has to consider the merits of her application in order to determine whether time should be extended. AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015.

16.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

17.  The applicant appeared before me. She complained that it was unfair to her as she was not given a hearing before the Board so that she might clarify to the Adjudicator.

18.  I enquired what she would clarify as the Board had accepted her evidence on the facts of her case. Her appeal was rejected solely on the application of the law and Convention to the facts as she put to the immigration officer and the Board. She then said that she had nothing to clarify and was satisfied that it was fair to her even though there was no hearing for her.

19.  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.”

20.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

21.  The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

22.  Since the applicant’s application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to extend time for her to make this application for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

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