Wiwik Susanti v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 983/2021

[2022] HKCFI 1454

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 983 of 2021

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 8 May 2020 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The application is late and I shall deal with this issue below.

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

3.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

4.The applicant is a national of Indonesia. She entered Hong Kong on 1 September 2011 to work as a foreign domestic helper. However, her employment contract was terminated prematurely on 15 March 2013. She failed to depart and had overstayed since 29 March 2013. On 13 April 2013, she was arrested by the police. Subsequently, she absconded and went underground. On 10 March 2015, she was again arrested, but later absconded. On 1 March 2018, she was arrested by the police. On 5 March 2018 and 15 March 2018, she wrote to the Immigration Department to reopen her non-refoulement claim, which was previously lodged on 3 March 2014 and 12 March 2015.

5.The applicant’s claim was made on the basis that, if refouled, she would be harmed or killed by a man called Agus. The stories she presented before the Director could be summarized as follows. She claimed that Agus asked her to marry him in 2011 but she refused. His family was rich and influential. Met with the applicant’s refusal, Agus threatened to kill her, even after she escaped to Hong Kong. Details of her claim are set out at paragraph 8 of the Notice of Decision dated 21 January 2019 by the Director (the “Director’s Decision”) described below.

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

(1)  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)  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”);

(3)  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

(4)  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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim on the basis that she would not face any real risk of harm upon refoulement. In elaboration, the Director found that (i) the past experience indicated an unlikelihood of future risk of harm [13]; (ii) state protection would be available to her [14]; and (iii) internal relocation was a viable alternative [15].

The Board’s Decision

8.The applicant appealed to the Director’s Decision to the Board. On 26 June 2019, the Board conducted an oral hearing for her appeal, during which she answered the Board’s inquiries [28].

9.The Board noticed that the applicant was inconsistent in the centerpieces of her evidence; for example, whether it was Agus or her mother proposed the marriage [36]-[38] and how often Agus called to threaten her [40]-[43]. The applicant failed to provide any cogent explanations for the inconsistencies. In addition, the Board found that the delay in making the non-refoulement protection undermined the applicant’s credibility [46]-[48]. Viewing the evidence in totality, the Board concluded that the applicant lacked credibility [49]-[52]. On this basis, the Board rejected her claim and dismissed her appeal.

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

10.The applicant filed Form 86 dated 12 July 2021 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant did not set out any specific ground.

DISCUSSION

12.As mentioned in paragraph 1, the applicant’s application filed on 12 July 2021 is late, the deadline being 8 August 2020. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merit of the applicant’s case.

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

14.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, CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.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.”

16.The Board had considered the merits of the applicant’s case and given reasons in support of its conclusion. The Board rejected her evidence on the facts of her case, which means she does not have any factual basis in support of her claim.

17.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.

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

CONCLUSION

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

Dated the 2^nd day of June 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