Sriatun Lisnawati v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1120/2019

[2022] HKCFI 1805

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1120 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 18 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

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 last entered Hong Kong on 20 January 2009 and was permitted to work as a foreign domestic helper until 20 October 2010. Her employment contract was terminated prematurely on 10 February 2010. However, she did not depart within the time limit but had overstayed since 25 February 2010. On 10 December 2010, she was arrested by the police. On 22 December 2010, she lodged a torture claim which was later rejected on 19 October 2012. On 11 May 2015, she lodged a non-refoulement claim on applicable grounds other than the torture risk[1]. However, the immigration officer was unable to contact the applicant through various means. The immigration officer decided not to take further action of her application on 23 November 2017. On 25 January 2018, she applied to resume her non-refoulement claim. On 4 May 2018, the Immigration Department acceded to her request.

5.The applicant’s claim was made on the basis that, if refouled, she would be harmed or killed by her creditor. According to the applicant, her parents owed a debt which was used for her brother’s medical expenses back in 1999. From 1999 to 2006, the creditor allowed her parents time to repay the loan. However, from 2007 onwards, the creditor started to visit her house, demanding and threatening the applicant for repayment. Out of fear, she came and stayed in Hong Kong for protection. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 22 October 2018 by the Director (the “Director’s Decision”) and paragraphs 24 to 45 of the Board’s Decision described below.

The Director’s Decision

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

a.  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”);

b.  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

c.  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 rejected the applicant’s claim for the reason that the alleged risk of harm upon refoulement was assessed to be low. In elaboration, the Director found that (i) the creditor had never hurt the applicant or her parents [16]-[17]; (ii) no evidence showed that the threats from the creditor would materialize [18]; (iii) it was only a personal and private dispute [19]; (iv) there was no evidence showing that the creditor was still looking for her [20]; (v) the delay in lodging her non-refoulement claim undermined her credibility in seeking international protection [21]; (vi) state protection would be available [22]-[29]; and (vii) internal relocation was a viable alternative [30]-[34].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 11 March 2019, the Board conducted an oral hearing for her appeal, during which she answered the Board’s inquiries with the assistance of an interpreter [48].

9.Having considered all the evidence, the Board found that her claim was unsubstantiated. The Board observed that the applicant was evasive in giving her evidence [49]; that the applicant had fabricated the background of the creditor whom she had never met [50]; that it was illogical for the creditor to turn his attitude drastically in 2007 while he gave her time to repay the loan in the previous 7 years [51]-[52]; and that the creditor had shown no intention to cause any harm or even kill her [53].

10.Further, the Board also rejected her explanation of not lodging her non-refoulement claim promptly [54]. It noticed that the applicant was evasive in material aspects of her claim [55]-[58]. As a result, the Board found that the creditor was not as powerful as claimed by the applicant [59]; that the applicant was unable to provide details of the loan [61]; and that she had made up a story to strengthen her claim [62]. In any event, state protection and internal relocation were both viable alternatives [69]-[81].

11.For the above reasons, the Board rejected the applicant’s claim on BOR 3 risk, BOR 2 risk and Persecution risk and dismissed her appeal.

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

12.The applicant has filed Form 86 dated 26 April 2019 for leave to apply for judicial review of the Board’s Decision.

13.In her affirmation in support of her application, the applicant enclosed the hearing bundle papers without specifying any ground.

DISCUSSION

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

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

16.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.”

17.The applicant has not been able to raise any valid reason to challenge the Board’s Decision.

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

Dated the 5^th day of July 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