USWATUN KHASANAH v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2563/2018

[2022] HKCFI 2786

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2563 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;  or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 5 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for the applicant. However, she was absent without any prior notice to the Court. Her application is therefore dealt with on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.  The applicant is a national of Indonesia.  She last entered Hong Kong on 27 July 2015 as a visitor and was permitted to stay until 29 July 2015.  She did not leave and had overstayed since 30 July 2015.  On 1 March 2016, she surrendered to the Immigration Department.  By way of written significations dated from 12 to 26 January 2017, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her moneylender. 

5.  In brevity, the applicant borrowed a sum from the moneylender in 2004 for her grandmother’s medical expenses.  The moneylender was introduced to the applicant by her friend Siti.  Later, the applicant became unable to afford the loan.  On two occasions, the moneylender threatened and assaulted her after she defaulted the payments.  As the moneylender forced her to be a prostitute, the applicant escaped to Bali.  While she was there, she learnt from Siti that the moneylender kept looking for her.  She also noticed from Facebook that someone posted her photo online and invited the public to reveal her whereabouts.  Out of fear, the applicant eventually fled to Hong Kong for protection.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 29 March 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

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

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

b.  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”);

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”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm upon refoulement was assessed to be low.  In elaboration, the Director found that (i) the absence of physical ill-treatments indicated an unlikelihood of future risk of harm [11]-[12]; (ii) state protection would be available to her [13]-[15]; and (iii) internal relocation was a viable alternative [16]-[19].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  Having considered the relevant legal principles and the applicant’s case, the Board decided that it was fair and appropriate to dispose this appeal on paper [16]-[20]. 

9.  The Board considered that (i) while the moneylender and his men were armed and they visited Siti’s house asking the applicant for repayments, they did not use the weapons but merely pushed the applicant; and (ii) in the second incident, they only grabbed the applicant’s arm without taking further actions.  As such, the applicant’s injuries were only minor ones which failed to attain the minimum level of severity [23].  Further, it noted that this was only a private dispute [24].  The Board also considered the country of origin information and found that state protection and internal relocation were both available to the applicant [31]-[32]; [42]-[43].  

10.  For the above reasons, the Board rejected the applicant’s claim and dismissed her appeal. 

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

11.  The applicant has filed Form 86 on 14 November 2018 for leave to apply for judicial review of the Board’s Decision.

12.  In her affirmation in support of her application, the applicant did not set out any ground. However, she had sent a letter to the Court, in which she set out her written submissions, which are summarized below.

(1)   The Board had unlawfully fettered its discretion by refusing her application.

(2)   The adjudicator acted in a procedurally unfair manner.

(3)   The Board’s Decision is unfair or irrational.

(4)   The Board failed to meet the greater care and duty owed to a self-represented applicant.

(5)   The hearing bundle was not delivered to the applicant in a timely manner, with interpretation and she was confused as to what was happening.

(6)   She had answered all the questions put to her with honesty, it is unfair for the Board to find that her evidence is incredible.

(7)   The Board had relied on the source of news which is not officially recognized or outdated, or is simply hearsay. The Board therefore makes groundless speculation that she is safe to return to Indonesia.

DISCUSSION

13.  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).

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

15.  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.”

16.  As to the grounds in paragraph 12 above, other than ground (5), the other grounds are her opinions or bare assertions without any evidence in support. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”

17.  Ground (5) can be disposed of by reference to the decisions of the Court of Appeal. The Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, 19 July 2019 held:

“I8. … …Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.”

18.  There is no record from the Board’s Decision that she had told the Board that she did not have sufficient time to prepare her appeal. The fact that she had answered all the questions put to her by the Board shows she was not confused at the hearing.

19.  There is no valid ground from the applicant to challenge the Board’s Decision.

20.  The Court does not find any fault with the Board in reaching the Board’s Decision.

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

CONCLUSION

22.  I refuse to grant leave to the applicant 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