Ana Lusia v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1085/2019

[2022] HKCFI 1636

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1085 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;

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 applies for leave to apply for judicial review of the Decision dated 12 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”), which was received by the applicant on 22 April 2019. This Decision dealt with the applicant’s BOR2 risk only.

2.The applicant stated in Form 86 “An oral hearing of this application under O.53, r.3(3) if leave is not granted on the papers.” Under O.53, r.3(3), the application is an ex parte application for which the court may determine without a hearing unless a hearing is requested in the notice of application. The court therefore treated it as a request for a hearing and a date was fixed for the hearing.

3.However, due to COVID-19 pandemic, the government discouraged social gathering and the court had to suspend hearings for a period of time. Since the applicant had submitted lengthy written submissions, the court sent a letter dated 18 March 2022 to the applicant and invited her to make further submissions in order to dispense with hearing in court. The letter further said that if she takes the view that it is not possible to make written submissions in place of oral hearing, she should so inform the court, stating her reasons why this is the case and if she does not respond to the letter within 7 days, the court will proceed to consider her application on paper. The written decision will be sent to the applicant in due course.

4.The applicant did not respond to the said letter within 7 days.

5.Under Order 1A rule 1(b) of the RHC, the underlying objectives of the rules are to ensure that a case is dealt with as expeditiously as is reasonably practicable. Under Order 1B rule 1(l), the court has the power to take steps to make any order for the purpose of managing the case and furthering the underlying objectives set out in Order 1A. I consider that the court has the power to dispense with open hearing of the applicant’s application without doing injustice to her application. I therefore proceed to consider her application on paper.

6.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

7.The applicant is a national of Indonesia. She came to Hong Kong on a visa on 1 August 2011. She overstayed and was arrested by police on 5 August 2014. She was convicted of the offence for staying in Hong Kong without authority and was sentenced to 12 weeks’ imprisonment. On 29 August 2014, she lodged non-refoulement claim on the ground that, if refouled, she would be harmed or killed by an unknown loan shark because she defaulted repayment of her loan and her husband’s loan.

8.The applicant claimed that her husband had borrowed 2 loans from the loan shark, who was unknown to her. Between 1988 and 2008, a period of 20 years, the loan shark had gone to her house to demand repayment of her husband’s loans 3 times. The loan shark did not hurt her or her family members. In 2011, her husband sent her a letter, telling her that he was in Hong Kong with their son. Then she borrowed about HK$20,000 from the loan shark for her trip to Hong Kong and promised to repay the debt after she had met her husband in Hong Kong. The loan shark lent her the money. After arriving in Hong Kong, she did not contact her husband because she did not know his phone number. She was robbed all her money in Hong Kong. She had to sleep in the parks in Hong Kong for 2 years. Details of her story are set out in paragraph 6 of the Director’s First Decision dated 31 March 2015 (“the Director’s First Decision”)

The Director’s Decisions

9.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.  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”).

10.By the Director’s First Decision, the Director refused the applicant’s claim on the grounds of Torture risk, BOR3 risk and Persecution risk. The Director found that the level of risk of harm against the applicant from the loan shark upon refoulement was assessed to be low because (i) the absence of ill-treatment from the loan shark in the past was indicative of small risk in future upon her return [13]; (ii) state protection was available to her [14] and (iii) internal relocation was an option open to her [15].

11.By Notice of Further Decision dated 29 May 2017 (“the Director’s Second Decision”), the Director rejected her claim on BOR2 risk for the reason that there was no evidence to show that her right to life under BOR2 would be violated upon her return to Indonesia.

The Board’s Decisions

12.The applicant appealed to the Director’s First Decision to the Board. The applicant attended a hearing before the Board on 24 May 2016. Having consider the evidence, the Board found that there were material contradictions in material aspects of her evidence and it was simply unsafe to reach a decision in her favour on such unreliable and incredible evidence [30]. The applicant did not make application for judicial review of the Board’s First Decision, which has become final.

13.The applicant appealed the Director’s Second Decision to the Board and attended a hearing before the Board on 4 March 2019. The Board, having considered the evidence given by the applicant at the hearing, concluded that BOR2 risk did not apply to her case and therefore dismissed her appeal.

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

14.The applicant filed Form 86 dated 23 April 2019 for leave to apply for judicial review of the Board’s Second Decision.

15.In her affirmation in support of her application, the applicant set out her grounds, which seemed to have been copied from other source as they contained obvious irrelevant materials and referring herself as a male person. I shall, nevertheless, summarize the grounds below.

(1)  The hearing bundle was delivered to her shortly before the hearing and the contents were in English, which she did not understand. Nor could she afford an interpreter herself. Therefore, she was confused at the hearing.

(2)  The Board did not notify her by phone upon her request.

(3)  The hearing was unfair as she had answered all the questions honestly.

(4)  The Board had relied upon source of news, which was not recognized officially and on cases, which were outdated. Therefore, the Board’s findings were groundless and speculative.

(5)  It was unfair to have no screening by the immigration officer for the BOR2 risk assessment.

DISCUSSION

16.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).

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

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 Board had considered the merits of the applicant’s case and given reasons in support of its conclusion. The grounds in support of her application do not assist her application.

20.The Court of Appeal in Re Sharma Poonam [2019] HKCA 804 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.”

There was no application before the Board that she needed time to prepare her appeal. As she said that she answers all the questions put to her by the adjudicator, she cannot say that she was confused at the hearing. Ground (1) fails.

21.The Board is under no legal obligation to notify her by phone. Ground (2) fails. Grounds (3) and (4) are her personal opinions without any evidence in support. They fail. Ground (5) fails too because there had been screening for the other risks. The applicant relied on the facts in the Director’s First Decision, which were obtained by the immigration officer through the screening. It is simply unnecessary to have another screening process again.

22.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.

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

CONCLUSION

24.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 31^st day of May 2022

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