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HCAL 1360/2019
[2024] HKCFI 328
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1360 of 2019
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Putri-Arena Sari alias Rukayati |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
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 15 April 2019 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 to be heard on 19 July 2023. However, she was absent without prior notice to the Court. Her application is therefore dealt with on paper.
The applicant
3. The applicant is a national of Indonesia. She was previously removed from Hong Kong on 15 May 2012. However, on 19 December 2014, she entered Hong Kong again and was permitted to remain as a foreign domestic helper until 19 December 2016. Her employment contract was prematurely terminated. On 25 January 2015, she departed Hong Kong and re-entered on the same date. She was permitted to stay as a visitor until 27 January 2015. She did not depart and had overstayed since 28 January 2015. On 11 October 2018, she surrendered to the Immigration Department. On 18 October 2018, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by the creditor due to an outstanding debt.
4. According to the applicant, in 1997, her father took out a loan from the loan shark for the family’s daily expenditures and his medical expenses. The terms of the loan were that the principal had to be repaid in a year and the interest had to be repaid every two months. However, her family was only able to repay one installment. As her father defaulted the loan, the loan shark demanded the applicant to marry him to settle the loan. The applicant refused. Since then, the loan shark had been visiting her family, throwing stones at the house and assaulting her father. He also threatened to kill her whole family. In one incident, the loan shark caused the applicant a broken knee.
5. From 2003 to 2004, the applicant worked in Hong Kong. Upon her return to Indonesia in 2004, she was visited and assaulted by the loan shark again. From 2008 to 2011, the applicant again came to work in Hong Kong. In June 2008, the loan shark threatened her family to settle the loan quickly. He had been harassing the applicant’s family from 2008 to 2012. In 2012, she stayed with her friend without encountering any problem in Indonesia. However, when she returned to work in Hong Kong in 2014, she was informed by her friend that she became a wanted person. Out of fear, she decided to seek protection in Hong Kong. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 21 December 2018 by the Director (the “Director’s Decision”).
The Director’s Decisions
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. In elaboration, the Director found that (i) the low intensity and extent of past ill-treatments indicated an unlikelihood of future risk of harm [13]-[16]; (ii) state protection would be available to her [17]-[20]; and (iii) internal relocation was a viable option [21]-[28].
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 26 March 2019, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter [27].
9. The Board recapped the applicant’s claim [27]-[43], considered her notice of appeal/petition [44], and summarized her oral testimonies [45]-[55]. Having considered the evidence, the Board found that the applicant was inconsistent about the central elements of her claim [59]. It was also not persuaded by the applicant’s account in relation to her conversation with her friend [60]. Meanwhile, the Board found that the applicant’s evidence about her contact with friend and family in Indonesia was inherently implausible [61]. It further noted that the applicant’s delay in lodging the non-refoulement claim damaged her credibility [62].
10. On the basis of lack of credibility, 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 dated 20 May 2019 for leave to apply for judicial review of the Board’s Decision.
12. In the applicant’s affirmation in support of her application, she said that
a. the hearing bundle was given to her shortly before the hearing and the documents were mostly in English without interpretation;
b. she was unable to afford an interpreter; that she was confused at the hearing, but she had answered all the questions put to her by the Board; and
c. the Board had relied upon the source of news which is not officially recognized or it is simply hearsay and some cases which are fairly outdated, resulting in the Board’s speculation that it is safe for her to return to her country.
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. For the reasons given in paragraph 9, the Board rejected her evidence.
17. The grounds raised by the applicant in paragraph 12 above do not assist her application. She did not inform the Board that she did not have sufficient time to prepare her case before the hearing. Yet, she was able to answer the questions put to her. She is not entitled to interpretation service all the time[1]. Ground (3) is simply her bare assertion without any evidence in support and should not form a valid ground to challenge the Board’s Decision[2].
18. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.
CONCLUSION
19. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 7th day of February 2024
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(M.O. WONG)(Ms)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 7/2/2024
Putri-Arena Sari alias Rukayati
Applicant’s ref. no:
Nil
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 7/2/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 15200/19/1/73/I1604
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 4987/18 (formerly RBCZ 119/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] The Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, 19 July 2019 held: “16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.”
[2] 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].”
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