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

HCAL 954/2019

[2023] HKCFI 1536

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 954 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 14 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court fixed a hearing for her on 13 February 2023. However, she was absent without prior notice to the Court. Her application is therefore dealt with on the papers.

The applicant

3.  The applicant is a national of Indonesia.  She entered Hong Kong as a foreign domestic helper on 21 April 2012 and was permitted to remain until 21 April 2014, or two weeks after the termination of the employment contract, whichever was earlier.  On 12 May 2012, her employment contract was prematurely terminated and she was required to leave on or before 26 May 2012. However, she did not depart and had overstayed since then.  On 17 April 2013, she was arrested by the police for overstaying.  On 4 April 2014, she lodged her non-refoulement claim.  Despite the Immigration Department had sent repeated written notifications to her, she failed to proceed with her claim. On 7 July 2017, she requested via letter to have the process of her claim resumed.  Her claim was made on the basis that, if refouled, she would be forced to be a prostitute or to marry Rafick by her stepmother because she failed to repay her stepmother’s loan.

4.  In brevity, the applicant claimed that, in around 2010, her stepmother borrowed a loan at around HK$50,000 from Rafick who was their neighbor.  He was wealthy and had the tendency to treat woman badly.  The first incident happened in one afternoon when the applicant’s stepmother asked her to marry Rafick to settle the loan.  The applicant refused and was assaulted by her stepmother. She was also verbally threatened.  Later on, Rafick visited the applicant’s house and attempted to rape her on two occasions.  In the second incident, Rafick used a knife and cut a cross on his own face, threatening the applicant not to report to the police.  Yet, he then filed a complaint to the police, accusing the applicant of attempted murder.  Out of fear, the applicant decided to seek protection in Hong Kong.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 13 December 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

5.  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”).

6.  By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm upon refoulement was assessed to be low.  In elaboration, the Director found that (i) the low intensity and frequency of ill-treatments indicated an unlikelihood of future risk of harm [11]-[14]; (ii) state protection would be available to her [15]-[18]; and (iii) internal relocation was a viable option [19]-[23].

The Board’s Decision

7.  The applicant appealed the Director’s Decision to the Board.  On 9 October 2018, the Board conducted an oral hearing for her appeal, during which she did not testify but answered several inquiries from the Board [22]-[23].

8.  Having considered the evidence, the Board found that the applicant’s evidence was unreliable and illogical.  In particular, the Board expressed its concern over the currency of the loan, which was in Hong Kong dollars instead of that in Indonesian currency; that she was not severely harmed by either her stepmother or Rafick.  In fact, she was able to defend herself in both encounters with Rafick; that it was unreasonable why she did not tell her father about the stepmother’s conducts and why she did not follow her father’s advice to report the attempted rapes; that it was ironic that Rafick would cut himself with a knife; that neither her stepmother nor Rafick was government official; and that there was no state involvement and state protection was available to her [29]-[30].  In any event, internal relocation was a viable option [43]-[47].

9.  For the aforesaid findings, the Board rejected the applicant’s claim and dismissed her appeal.

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

10.  The applicant has filed Form 86 dated 9 April 2019 for leave to apply for judicial review of the Board’s Decision.

11.  In her affirmation in support of her application, the applicant stated the following grounds:

(1)  the hearing bundle with documents in English was given to her 6 days before the hearing without interpretation and she does not understand English;

(2)  she did not have legal representation and she could not afford to employ one;

(3)  she did not have enough time to prepare for the hearing before the Board;

(4)  she was confused at the hearing, nevertheless, she answered all the questions put to her honestly; and

(5)  because of the above, the hearing was unfair.

DISCUSSION

12.  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).

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

14.  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.”

15.  The Board, for the reasons given above, had rejected her evidence on the facts of her claim. As to the grounds in paragraph 11 above, there is no record that she had complained to the Board that she did not have enough time to prepare for the hearing. The Court of Appeal in 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.”

16.  Further the Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:

“22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”

17.  Since she had answered all the questions put to her by the Board, it shows that she understood what was happening at the Board’s hearing. All of her grounds therefore fail.

18.  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.

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

CONCLUSION

20.  I refuse to grant leave to the applicant 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