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

HCAL 1928/2018

[2019] HKCFI 3141

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1928 of 2018

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

Following;

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 9 August 2018 of the Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”) and the Director of Immigration (“the Director”)

2.  The applicant is not legally represented and she did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to her. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant did not attend the hearing on 30 October 2019. I shall proceed to consider her application on paper.

3.  In Re: Moshsin Ali, [2018] HKCA 549 (CACV 54/2018), the Court of Appeal held that the applicant cannot apply for leave to apply for judicial review of the Director’s decision once she had appealed her decision to the Board.

4.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, the Court, on its own motion, amended Form 86 by deleting the Director as the respondent.

The applicant

5.  The applicant is an Indonesian national. She came to Hong Kong on 22 February 2013 and was permitted to stay as a domestic helper. Her employment contract was terminated prematurely. She overstayed since 30 April 2014. On 16 January 2015, she surrendered to the Immigration Department. On 22 January 2015, she lodged a non-refoulement claim.

6.  In support of her claim, she said that if refouled, she feared that she would be harmed or killed by a loan shark named Bambang because of her family’s default in loan repayment.

7.  Her family had borrowed 50 million Indonesian Rupiah from Bambang for her father’s medical expenses. Her father finally passed away in July 2000. But they were unable to repay the debt. Bambang forfeited their house. They had to live in various places of their relatives. Bambang pursued her and threatened to put her in jail if she could not pay. In 2007, she went to work in West Kalimantan as a plantation worker. In May 2011, she came to Hong Kong as a domestic helper. Whilst she worked, she remitted $2000 back home every month. Her contracted terminated in 2014 and she was unable to find another employer. However, she could not return to Indonesia because of the debt to Bambang.

The Director’s Decision

8.  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”).

9.  By Notice of Decision dated 13 September 2017 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated.  The Director found that there were no substantial grounds for believing that there would be any real and substantial risk of her being ill-treated by Bambang upon her return to Indonesia [13]; that state protection was available to her [16] and internal relocation was an option open to her [21].

The Board’s Decision

10.  The applicant appealed to the Board against the Director’s Decision and she attended a hearing before the Adjudicator on 8 May 2018.

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 her evidence was vague, unsubstantiated, illogical and fanciful and that she had fabricated her evidence in order to prolong her stay in Hong Kong.

13.  For the reasons, see paragraphs 41-45 of the Board’s Decision.

Application for leave to apply for judicial review

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

15.  In her affirmation in support of her application, she did not set out any grounds in support of her application.

DISCUSSION

16.  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.”

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

CONCLUSION

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