DWI SURYANI SAFITRI v. PETER JOHN POWER, THE ADJUDICATOR OF THE TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL1371/2018

[2019] HKCFI 254

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1371 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 the documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.  This is the applicant’s application for leave for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration (“the Director”) as the interested party.

The applicant

2.  The applicant is an Indonesian national, who came to Hong Kong as a domestic helper and was permitted to stay by the Director until 5 February 2016 or two weeks after termination of her employment contract, whichever was earlier. The Director had extended her stay until 5 February 2017. Her contract was terminated prematurely. She overstayed without the Director’s permission. On 7 March 2016, she surrendered to the Immigration Department. She applied for non-refoulement claim. She claimed that if she was refouled back to Indonesia, she would be at risk of being harmed or killed by the loan shark Mr. Sodik on account of her loan dispute with him. She was also in fear of being harmed or killed by Joko Pranyoto, her husband, based upon her past experience of his domestic violence and threats.

3.  In her statements given to the Director and the Board, she stated that her brother was injured in a traffic accident and the family had to borrow money from Sodik. Her husband was gambling and drinking and had also borrowed money from Sodik. He demanded money from her and hit her. They were unable to repay the debt. In 2013, Sodik had gone to her home four times, each time beating her and her father for not being able to pay the debt. They had suffered injuries. The applicant had reported this matter to police once, but the police took no action. In 2013, she had been kidnapped while she was on the road. However, she was not tied up and she managed to escape. The applicant finally went to a domestic agency for training and she came to Hong Kong as a domestic helper in 2014.

The Director’s Decision

4.  The Director had considered the application by reference 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.  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 under RC”).

5.  By Notice of Decision dated 9 February 2018, the Director rejected her application. He had set out his reasons in his Decision.

The Board

6.  The applicant appealed to the Board.

7.  On 25 April 2018, the applicant attended a hearing before the Adjudicator.

8.  By Decision dated 15 June 2018 (“the Board’s Decision”), the Board refused the applicant’s appeal and confirmed the Director’s Decision.

9.  The Adjudicator had a re-hearing and he had also considered the Director’s Decision [44]. Having considered the evidence, he concluded that there was no state involvement in her case and the claim was based on private matters [62]; there was insufficient evidence to show that she was subjected to BOR 2 risk or BOR 3 risk and also persecution risk [63-65]. The Adjudicator also found that state protection was available to her and she had the option of relocation too.

Application for leave for judicial review

10.  By Form 86 dated 12 July 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Board’s Decision.

11.  In her affirmation in support of her application filed on 12 July 2018, the applicant set out her reasons in her 20-page narrative.  I shall summarize the specific grounds below:

(a)  the hearing bundle was given to her shortly before the appeal hearing and she did not have sufficient time to prepare her case;

(b)  the contents of the hearing bundle were in English and she was unable to obtain interpreter service;

(c)  she was confused at the appeal hearing;

(d)  the Adjudicator was unfair and he had not given greater care to a self-represented claimant;

(e)  the Adjudicator had misdirected himself by considering that the applicant had to experience torture in the past in order to establish substantial grounds to believe that there was a risk of torture in future;

(f)  the Adjudicator had not done sufficient research in the Country of Origin Information and his knowledge was not updated;

(g)  the Adjudicator had relied upon hearsay information and outdated material in relation to Country of Origin Information;

(h)  the Adjudicator had given undue weight on the irrelevant material;

(i)  the Adjudicator was wrong in state protection in her country;

(j)  the Adjudicator had failed to call for psychological and psychiatric reports on the applicant; and

(k)  the applicant was not legally represented at the appeal hearing.

DISCUSSION

12.  The applicant requested a hearing and she had appeared before me.

13.  She said that those grounds above were written by her friend. She did not have much knowledge about them herself. She simply trusted her friend. She confirmed that she received the hearing bundle shortly before the appeal hearing. But she was able to get this friend to explain the contents to her. She was not confused when she attended the appeal hearing. She understood the questions put to her by the Adjudicator and she answered them fully. She confirmed that all her answers were true and correct.

14.  Overall, she has no complaint against the Immigration officer, her own lawyer and the interpreter at the screening process. Nor does she have any complaint against the Adjudicator or the interpreter.

15.  What she said before me is clearly contradictory to those grounds above.

16.  Even if those grounds were prepared by her friend on her behalf on the basis that she was not happy about the Board’s Decision, I consider that they are not substantiated.

17.  The burden is on the applicant to set out the grounds in support of her application, such grounds have to bear substance, not just “putting forward a bare and flimsy assertion” Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §29.

18.  11.d., f., g., h., i. are her opinions or comments without any evidence to support. They do not constitute valid grounds to challenge the Board’s Decision.

19.  11. a., b, c are inconsistent with her own version in Court. They can be disregarded.

20.  As to 11.e, the Adjudicator did not rely upon her past experience of torturing. The Adjudicator was entitled to consider her past experience to consider her allegation that she would be tortured if she was refouled to Indonesia. Her allegation would be fortified by her past experience of torturing. It is a matter of weight that the Adjudicator would give to her allegation.

21.  As to 11. J., the applicant had not raised the issue of her psychological or psychiatric in the screen process by the Immigration officer or before the Adjudicator. There is nothing amiss for the Board not to call for such reports.

22.  As to 11.k., the Court of Appeal in  Re: Ahmea Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration.  We do not find anything amiss arising from lack of legal representation in the process before the Board.”

23.  I consider that the applicant has raised no reasonable ground in support of her judicial review.

CONCLUSION

24.     Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave for the judicial review. 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