Rika Astuti v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1609/2018

[2020] HKCFI 1016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1609 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant is not legally represented and she did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to her. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 3 September 2019.

2.The applicant applied for an adjournment of today’s hearing for the reason that she had applied for legal aid. Under section 15(4) and regulation 7A of the Legal Aid Ordinance, Cap. 91, subject to the court’s directions, the proceedings shall be stayed for 42 days. This Court had, by letter dated 15 August 2019, requested her to give explanation as to why she did not apply for legal aid immediately after the Board’s decision dated 26 July 2018 or after her application for judicial review on 13 August 2018. She did not give any explanation.

3.Having considered the circumstances of the case, this Court decided that the proceedings should not be stayed for the reasons below.

a.     She had applied for extension of two months from the immigration officer for her to supply further information for BOR 2 risk. But she did not give any further information. This demonstrated that she might be delaying the process.^[1]

b.     She did not appear before the Adjudicator of the Appeal Board for her appeal against the Director’s decision. She only said that she was not feeling well without producing any medical proof of her state of health. The Adjudicator did not accept her explanation.

c.     She failed to give this Court explanation for her delay in applying for legal aid.

d.     The facts and laws involved in her application are relatively simple and straightforward. It is unlikely that the Director of Legal Aid would grant her legal aid and those issues would not require legal representation in order to protect her interest.

e.     The process should not be delayed further, bearing in mind that there are other applicants lining up for the process and it takes time and costs for the re‑arrangement of the interpreter’s service.

4.Leave was granted to the applicant to amend Form 86 to name the Torture Claims Appeal Board as the respondent and to name the Board’s decision dated 26 July 2018.

The applicant

5.The applicant is a national of Indonesia. She first came to Hong Kong in 2008 as a domestic helper. She last arrived in Hong Kong on 8 July 2011. Her last contract was terminated early, but she did not depart Hong Kong as required and overstayed since 13 September 2013. On 14 May 2014, she was arrested by police for overstaying. She made a non-refoulement claim by way of a written representation.

6.In support of her claim, she said that if refouled, she feared that she would be harmed or killed by her father’s creditor.

7.Her father borrowed money from the creditor for medical expenses of her mother and himself. However, both her father and her mother passed away and they were unable to pay the loan. The creditor came to her house to demand payment. He also threatened to kill her if she did not pay. She went to Singapore where she worked for one year. But she was unable to pay off the debt. She returned to Indonesia. The creditor came again for payment and threatened her again. When she told the creditor that she had no money, he pushed her sister Ida to the floor. He then left. She did not report to police. Later, she found a job in Hong Kong. She received a call from the creditor. She was afraid that if she returned to Indonesia, she would be harmed or killed by the creditor.

The Director’s Decision

8.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”).

9.By Notice of Decision dated 22 December 2016, the Director refused her claim for the reason that her claim was not substantiated.

The Board’s Decision

10.The applicant appealed to the Board against the Director’s Decision but she failed to attend the hearing scheduled on 12 April 2018.

11.Pursuant to section 15 of Schedule 1A of the Ordinance, on 12 April 2018, the Board gave a 7-day notice to the applicant that it would determine her appeal in her absence unless she gave written explanation for her absence together with any documentary evidence supporting the explanation.

12.On 16 April 2018, the applicant provided a letter to the Board in which she stated that she did not attend the hearing because she did not feel well. She had not provided a medical certificate or any other documentary evidence to prove her state of health. The Board was not satisfied with her letter of explanation and proceeded to determine her appeal in her absence.

13.By Decision dated 26 July 2018 (“the Board’s Decision”), the Board rejected her appeal and confirmed the Director’s Decision.

14.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusions below.

a.     It had doubts about her claims that she was threatened by the creditor from whom her father borrowed money. There were inconsistencies in her evidence [40].

b.     Even giving her the benefit of the doubt that her father’s creditor had imposed pressure on her, the Board considered that any risk of harm to her in the future should she return to Indonesia should be remote [41].

c.     State protection should be available to her [43].

Application for leave to apply for judicial review

15.The applicant filed Form 86 for leave to apply for judicial review of the Board’s Decision.

16.In her affirmation in support of her application, she stated that she was not satisfied with the Board’s Decision; that her enemies in Indonesia were very powerful and they would cause harm to her life.

DISCUSSION

17.The applicant appeared before me. She said that she was free to state her case before the immigration officer. She also admitted that she did not appear before the Board and that she had no evidence to prove her state of health at that time.

18.I put the Board’s findings to her and asked her if she had any comments. She said that she had no comments. She agreed that it was fair for the Adjudicator to assess her appeal on the papers.

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.

Dated the 4^th day of June 2020

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

[1] Paragraph 5 of the Director’s letter dated 22 December 2016