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

HCAL 503/2019

[2021] HKCFI 3737

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 503 of 2019

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 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 27 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  Her application filed on 21 February 2019 is late. I shall deal with this issue below.

2.     The applicant did not request an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application 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 an Indonesian national. She came to Hong Kong in 2002 for her first employment as a domestic helper. She finished her contract and returned to Indonesia. On 3 January 2005, she came to Hong Kong again for her second employment as a domestic helper.  Her employment contract was terminated prematurely. She overstayed and was arrested by police on 13 July 2010.

5.     She had a rather checkered course for non-refoulement claim with the Immigration Department. She had twice withdrawn her claim and asked for re-opening. Finally, in January 2017, the Director accepted her non-refoulement claim on all applicable grounds described below.

6.     The applicant claimed that, if refouled, she would be harmed or killed by the creditor, from whom her family had borrowed money for the family expenses and the farming business, and the fundamentalist groups in her area because she had sexual relationship with a man before marriage, which is prohibited under the Muslim.

7.     She was unable to repay her family debt. The creditor, who was an influential person in her locality, demanded her to work in Taiwan, applying her salary to pay the debt. She had worked in Taiwan for 2 years and returned to Indonesia, still unable to pay off the debt.  The creditor proposed she marry him or she had to work in Hong Kong for another period. She opted the latter and came to Hong Kong to work as a domestic helper.  In Hong Kong, she fell in love with a man and they had sexual relationship.  She returned to Indonesia and told her story to her parents and the creditor, who was very angry and assaulted her.  The creditor sent her to a bar to be a prostitute.  She asked the creditor to allow her to work in Hong Kong again.  She then came to Hong Kong.  Details of her story are set out in paragraph 13 of the Director’s Decision described below.

The Director’s Decision

8.     The Director considered her application in relation to the following risks:

a.     risk of torture under Part VII C 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 22 September 2017 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found that the level of risk of her being harmed or killed by the creditor or the fundamentalist groups in her locality was assessed to be low (IV)[13]; that state protection would be available to her (IV)[18] and that internal relocation was an option open to her (IV)[21].

The Board’s Decision

10.     The applicant appealed to the Board against the Director’s Decision. She appeared before the adjudicator of the Board on 27 April 2018 and 4 May 2018.

11.     The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision. The Board found that the applicant would not be at risk of any harm and did not consider that there were substantial grounds for believing that she would be in danger of being subjected to torture if she returned to Indonesia. Based upon the gaps, inconsistencies and other problems with her evidence, the Board rejected her claims, both individually and cumulatively in their entirety. It dismissed her claim on all grounds. See paragraphs 46-104.

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

12.     The applicant filed Form 86 dated 21 February 2019 for leave to apply for judicial review of the Board’s Decision.

13.     In her affirmation in support of her application, the applicant simply said that she applied for leave to apply for judicial review against the Director’s Decision and the Board’s Decision and did not set out any specific grounds for her application.

DISCUSSION

14.     As mentioned in paragraph 1 above, 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.  Her delay for over 3 months is significant.  I shall first consider the prospect of the intended appeal.

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

16.     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, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

17.     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.”

18.     As the applicant had appealed the Director’s Decision to the Board, the Director’s Decision is not subject to judicial review. Re Moshsin Ali [2018] HKCA 549, §45.  The Board, after careful consideration of her evidence, was entitled to come to its conclusion as it had done.

19.     The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

21.     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