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

HCAL 2104/2023

[2024] HKCFI 629

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2104 of 2023

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

Following;

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

1.  The extension of time for the application for Judicial Review be refused; and

2.  The 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 2 June 2022 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Her application is late. Her application shall not be later than 3 months from the date of the Board’s Decision[1], which is 2 September 2022. Her application was filed on 24 November 2023, which is more than one year and 2 months late. This issue will be dealt with below.

2.  The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), she appeared before the Court on 31 January 2024.

The applicant

3.  The applicant, aged 43, is a national of Indonesia. She had been working in Hong Kong as a foreign domestic helper since 2005. She last entered Hong Kong on 22 July 2017 and overstayed since 27 March 2018. She was arrested by the police on 16 January 2020 and she lodged a non-refoulement claim on 2 March 2020. On 31 March 2020, she was convicted for using a forged identity card and breach of condition of stay and was sentenced to imprisonment for 15 months.

4.  According to the applicant, she got married around 1998. In around 2010, her husband wanted to take out a loan to start a poultry business. By 2012 to 2013, the applicant was informed by her mother that her husband was indebted to different loan sharks and financial institutions. The applicant lost contact with her husband since 2014 and her mother told her that he had fled the village. In early 2015, upon her return to Indonesia, three loan sharks and their underlings together with representatives from two financial institutions came to her home. The applicant knew one of the loan sharks called Mr Rozak, who belonged to a tribe named Batak. She realised that her husband had used the land deed of the matrimonial home as a collateral for the loan. The applicant tried to repay some of the debts, but she could not afford payment to all creditors.

5.  Later in 2015, the applicant divorced her husband. She also met Mr Rozak and his underlings twice while in Indonesia. They threatened her to repay the loan and made a chaos at her home by kicking and hitting things there despite the applicant told them about the divorce. The applicant reported the case to the police, but they refused to take a statement from her. They even scolded her and asked her to settle the loan as soon as possible.

6.  The applicant claimed that upon her return to Hong Kong, she still received messages from the creditors demanding repayment. Eventually, the applicant sold her matrimonial home in order to settle the loan owed to some of the creditors. She also repaid some of the loans on each occasion upon her return to Indonesia in July 2015, March 2016 and March 2017. The applicant made a final payment to Mr Rozak in 2018 as she no longer had any source of income after her employment was prematurely terminated in the same year. The applicant last contacted her family in around December 2019. She was informed that the creditors were asking for her whereabouts and threatened to kill her if she failed to repay the loan. The applicant claimed she was still receiving WhatsApp messages from the creditors in January 2020 before her arrest.

7.  The applicant was afraid that she would be in danger and became a burden to her family upon her return to Indonesia. She was of the view that the police could not offer protection to her given that she was scolded by them when she reported her threat in 2015. She also thought internal relocation within Indonesia not viable as she did not have any relatives elsewhere and that the creditors had network over the country to locate her anyway no matter where she stayed.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 18 August 2020 (“the Director’s Decision”).

The Director’s Decision

9.  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”).

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) the low intensity of past ill-treatment from the creditors is indicative of a low future risk of harm upon her return to Indonesia [12]-[14]; (ii) state protection will be available to her upon her return [16]-[19]; (iii) internal relocation is viable [15], [20]-[21] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [22]-[27], Persecution risk [28]-[32] and Torture risk [33]-[35].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board. On 15 June 2021, the Board conducted an oral hearing.

12.  Having considered the applicant’s evidence, the Board had little doubt about her debt problem, but they did not find her allegation of risk of being harmed by the creditors credible [53]-[57]. In any event, the applicant’s case failed to meet any of the requirements under Torture risk [7]-[10], [60]-[63], BOR 2 or BOR 3 risk [11]-[15], [64]-[65] or Persecution risk [16], [66]-[67].

13.  For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s decision.

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

14.  The applicant has filed Form 86 dated 24 November 2023 for leave to apply for judicial review of the Board’s Decision.

15.  The applicant did not raise any specific ground in support of her application. Nor did she explain her late application.

DISCUSSION

16.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

17.  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).

18.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before the Court, the applicant said she does not think the Board is wrong. But she wants to stay in Hong Kong.

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 applicant has failed to raise any valid ground to challenge the Board’s Decision. In my view, the Board’s Decision is reasonable and the Court has no reason to interfere with it.

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

CONCLUSION

22.  I refuse to extend time for the applicant to apply 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