EDI Subagio v Winston Leung, the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL1186/2018

[2019] HKCFI 348

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1186 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

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

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.  This is the applicant’s application for leave for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration (“the Director”) as interested party.

The applicant

2.  The applicant is an Indonesian national, who came to Hong Kong as a visitor on 11 July 2013. He overstayed without permission of the Director and was arrested by police on 11 August 2013. He was referred to the Immigration Department. On 13 August 2013, he made the non-refoulement claim. He claimed that if he was refouled to Indonesia, he would be killed by Sri Rahayu, a loan shark, from whom he had borrowed money.

3.  In his statements to the Director, he said that he had borrowed money from Sri Rahayu for his business. He was unable to repay. In 2012, Sri Rahayu and some of her men went to the applicant’s home demanding settlement of interest. She took a knife with her and she told her men to assault the applicant by kicking and punching him. He eventually decided to close his business and flee to Hong Kong.

The Director’s Decision

4.  The Director considered the applicant’s application on 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.  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 under RC”).

5.  By Notice of Decision dated 30 August 2017 (“the Director’s Decision”), the Director refused the applicant’s application for non-refoulement because his claims were not substantiated. He had set out his reasons in his Decision.

6.  The applicant appealed against the Director’s Decision to the Board.

The Board

7.  The Adjudicator of the Board conducted a hearing for the applicant on 9 May 2018.

8.  By Decision dated 21 June 2018 (“the Board’s Decision”), the Board refused the applicant’s appeal and confirmed the Director’s Decision. The Adjudicator had set out his reasons in the Board’s Decision.

9.  The Adjudicator, having considered the evidence, found that the applicant presented a very vague picture of his stories [35]; that he had made it clear that he was running away from the harassment of the moneylender to avoid his obligation to repay the money that he had borrowed [46]; that he failed to substantiate his claim for Persecution risk under RC [54]; that he had not made out his case on BOR 3 risk and BOR 2 risk [60 & 63]; that he had not made out his case under the Torture risk as there was no involvement of the state [68].

Application for leave for judicial review

10.  By Form 86 dated 25 June 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the decision of the Adjudicator of the Board.

11.  In his affirmation in support of his application filed on 25 June 2018, the applicant set out his reasons in a 20-page narrative. I shall summarize the specific grounds below:

a.  the hearing bundle was given to him shortly before the appeal hearing and he did not have sufficient time to prepare his case;

b.  the contents of the hearing bundle were in English and he was unable to obtain interpreter service;

c.  he was confused at the appeal hearing;

d.  the Adjudicator was unfair and he had not given greater care to a self-represented claimant;

e.  the Adjudicator had misdirected himself by considering that the applicant had to experience torture in the past in order to establish substantial grounds to believe that there was a risk of torture in future;

f.  the Adjudicator had not done sufficient research in the Country of Origin Information and his knowledge was not updated;

g.  the Adjudicator had relied upon hearsay information and outdated material in relation to Country of Origin Information;

h.  the Adjudicator had given undue weight on the irrelevant material;

i.  the Adjudicator was wrong in state protection in his country;

j.  the Adjudicator had failed to call for psychological and psychiatric reports on the applicant; and

k.  the applicant was not legally represented at the appeal hearing.

DISCUSSION

12.  The applicant requested a hearing before the Court and he has appeared before me.

13.  He said that those grounds above were written by his friend. He did not have much knowledge about them himself. He simply trusted his friend. He confirmed that he received the hearing bundle shortly before the appeal hearing. But he was able to get this friend to explain the contents to him. He was not confused when he attended the appeal hearing. He understood the questions put to him by the Adjudicator and he answered them fully. He confirmed that all his answers were true and correct.

14.  Overall, he has no complaint against the Immigration officer, his own lawyer or the interpreter at the screening process. Nor does he have any complaint against the Adjudicator or the interpreter.

15.  What he said before me is clearly contradictory to those grounds above.

16.  Even if those grounds were prepared by his friend on his behalf on the basis that he was not happy about the Board’s Decision, I consider that they are not substantiated.

17.  The burden is on the applicant to set out the grounds in support of his application, such grounds have to bear substance, not just “putting forward a bare and flimsy assertion” Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §29.

18.  11.d., f., g., h. and i. are his opinions or comments without any evidence to support them. They do not constitute valid grounds to challenge the Board’s Decision.

19.  11. a., b and c are inconsistent with his own version in Court. They can be disregarded.

20.  As to 11.e, the Adjudicator did not rely upon his past experience of torturing. The Adjudicator was entitled to consider his past experience to consider his allegation that he would be tortured if he was refouled to Indonesia. His allegation would be fortified by his past experience of torturing. It is a matter of weight that the Adjudicator would give to his allegation.

21.  As to 11. J., the applicant had not raised the issue of his psychological or psychiatric in the screen process by the Immigration officer or before the Adjudicator. There is nothing amiss for the Board not to call for such reports.

22.  As to 11.k., the Court of Appeal in  Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (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. 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.” This ground fails.

23.  I consider that the applicant has raised no reasonable ground in support of his judicial review.

CONCLUSION

24.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for the judicial review. Accordingly, I dismiss his application.

Dated the 15^th day of February 2019

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