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

HCAL 2593/2018

[2020] HKCFI 1739

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2593 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 application applies for leave to apply for judicial review of the Decision dated 9 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant was absent for her hearing on 22 May 2019 and her application was dismissed for want of prosecution with direction that her might apply to set it aside under Order 32, rule 6 of the Rules of the High Court. She applied to appeal out time. A hearing was fixed to be heard on 11 July 2019. Again, she was absent. Her application was dismissed for want of prosecution. She took out this application and appeared before me.

3.  She explained that she had not received the court’s letter. She was unable to explain why. She said that someone else might have taken the letter because the letter-box was a communal letter-box.

4.  In Re MGU [2019] HKCA 853, 14 August 2019 at §14, the Court of Appeal held that even if the court does not accept that the applicant’s explanation for the delay [beyond 14 days] is reasonable, the court should still examine if he has merit in the intended appeal. For the same reason, this Court should consider the merit of her case in any event. I therefore set aside the ex parte orders and proceeded to consider the merits of her case.

The applicant

5.  The applicant is a national of Indonesia. On 24 August 2014, she came to Hong Kong as a domestic helper and she was permitted to stay as such. Her employment contract was terminated on 28 August 2014. She overstayed. On 9 July 2015 she was convicted of the offence of breach of condition of stay.  She lodged a non-refoulement claim by written representation dated 9 July 2015.

6.  In support of her claim, she said that if refouled, she feared that she would be harmed or killed by the debt collectors as she was unable to repay the loan. In 2005, she borrowed money from the creditor for her father’s medical expenses. She was unable to repay. The creditor sent other people to collect debt. They threatened to kill her if she could not pay. She had gone to Singapore where she worked. But her employment was terminated prematurely. She returned to Indonesia and was harassed by the creditor and his people again. They nearly came to her house every day asking for repayment with threats. But they did not do anything other than harassing by words of mouth. She could not bear this and came to Hong Kong for work.

The Director’s Decision

7.  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”).

8.  By Notice of Decision dated 21 February 2018 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated. 

The Board’s Decision

9.  The applicant appealed to the Board against the Director’s Decision and she attended a hearing before the Adjudicator on 3 October 2018.

10.  By the Board’s Decision, the Board rejected her appeal and confirmed the Director’s Decision.

11.  The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusion that it did not accept that she was in fear of being harmed or killed by the debt collectors if she returned to Indonesia [53]. The Board also found that she was evasive in giving her evidence [54]. State protection was available to her [77] and relocation was an option open to her [83].

Application for leave to apply for judicial review

12.  The applicant filed Form 86 on 19 November 2018 for leave to apply for judicial review of the Board’s Decision.

13.  In her affirmation in support of her application, she relied upon the grounds below.

1.The hearing bundle was given to her shortly before the hearing without translation. She did not have sufficient time to prepare her appeal and she did not understand it without translation.

2.The Board had relied upon the source of news which were hearsay or outdated.

3.BOR 2 risk was assessed without screening.

4.The Board’s Decision was wrong.

DISCUSSION

14.  The applicant appeared before me. She said that she was free to state her case before the immigration officer and the Adjudicator at the Board hearing.

15.  In Re Magar Surendra [2019] HKCA 667, 13 June 2019, the Court of Appeal held:

“19. … …The inability to understand the hearing bundle before the board as a result of lack of language or other assistance, even if true, is irrelevant.”

16.  Ground (1) therefore fails. Grounds (2) and (4) are her opinions without any evidence or particular in support of them. Ground (3) is inconsistent with the fact. BOR 2 risk was assessed in one go.

17.  I explained the Board’s findings in paragraph 10 above to her and asked her if she had any comments on them. She said that she had no comments.

18.  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.”

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

CONCLUSION

20.  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