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

HCAL 1311/2021

[2021] HKCFI 3280

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1311 of 2021

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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;.

Order by Deputy High Court Judge K.W.  Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 11 September 2020 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  His application filed on 20 September 2021 is late.  I shall deal with this issue below.

2.  The applicant is now in custody of the Immigration Department and he asked for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I have therefore fixed a hearing for him.

The applicant

3.  The applicant is a citizen of Indonesia.  He entered Hong Kong on strength of his passport on 1 April 2019.  He overstayed and surrendered himself to the Immigration Department on 1 August 2019.   On 1 August, 7 August and 18 September 2019 he lodged a non-refoulement claim by way of a written representations. 

4.  The applicant claimed that, if refouled, he would be harmed or killed by the debt collectors of the Bank from which he had borrowed a loan of 192 million rupiahs for his garage business.  Due to an earthquake in August 2018, his lost his business and was unable to repay the loan.  The Bank collectors threatened to kill him if he was unable to repay the loan.  He had fled to live in Jakarta where his girlfriend lived.  Finally, he left Indonesia for Hong Kong on 1 April 2019.  Details of his story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decision

5.  The Director considered his 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”). 

6.  By Notice of Decision dated 24 December 2019, the Director refused his claim for the reason that his claim was not substantiated.  The Director found that the level of risk of him being harmed or killed if he returned to Indonesia was assessed to be low [12]; that state protection would be available to him [15]-[16] and that internal relocation was an option open to him [20]. 

The Board’s Decision

7.  He appealed against the Director’s Decision to the Board and attended a hearing on 5 June 2020. 

8.  The Board agreed with the Director and affirmed his Decision.  It found that the applicant had never been tortured by the Bank’s debt collectors within the context of section 37U of the Ordinance.  His case did not fall within the category of Persecution.  His experience in Indonesia did not meet the minimum level of severity requirement under BOR 3 and he failed to establish, by evidence, that he was subjected to right to life violation if he returned to Indonesia.  The Board also found that internal relocation was an option open to him [47-56]. 

Application for leave to apply for judicial review

9.  The applicant filed Form 86 on 20 September 2021 for leave to apply for judicial review of the Board’s Decision.

10.  In his affirmation in support of his application, he attached the Director’s Decision without specifying any grounds in support of his application.

DISCUSSION

11.  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.  The delay is, of course, serious. However, I shall first consider the merits of the applicant’s case.

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

13.  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.”

14.  He does not have any valid ground to challenge the Board’s Decision. 

15.  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.

16.  There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

17.  I therefore refuse to extend time for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his 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