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

HCAL 1762/2019

[2024] HKCFI 2381

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1762 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 5 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. However, she was absent at the hearing on 24 June 2014 without prior notice to the Court. I shall deal with her application on paper.

The applicant

3.The applicant, aged 43, is an Indonesian. She last arrived in Hong Kong on 2 November 2015 as a visitor and she overstayed since 3 December 2015. The applicant surrendered to the Immigration Department on 16 December 2015 and made a non-refoulement claim on 20 July 2016. The claim was made on the basis that, if refouled, she would be harmed or killed by her creditor (“the creditor”) because she failed to repay her loan.

4.According to the applicant, she took out a loan from the creditor in 2013 as she intended to start her own business. The applicant repaid loan instalments between January 2013 and April 2013, but she stopped doing so by May 2013. In June 2013, the creditor called to chase for repayment, for which the applicant replied that she would do so if she had money. The creditor then threatened that if she failed to repay her loan, her life would be in danger when she returned to Indonesia. Out of fear, the applicant changed her phone number. As the creditor was unable to contact her, she went to the home of the applicant’s mother to enquire when payment could be made. Subsequently, with the consent of the applicant’s mother, the creditor took some household furniture from the house. Thereafter, the creditor went to the home of the applicant’s mother three more times in 2013 and would ask her when repayment could be made whenever they met.

5.The applicant did not report the threat from the creditor to the police because she indeed owed her money. She also considered internal relocation not viable because she believed that the creditor would be able to locate her through her connections with her neighbours.

6.Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 29 August 2018 (“the Director’s Decision”).

The Director’s Decision

7.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”);

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”); and

d. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that notwithstanding the discrepancy regarding the timing of the incidents, the past action taken by the creditor indicated that she had no real intention to seriously harm or kill the applicant [16]. In any event, the applicant’s delay in seeking non-refoulement protection also showed that the risk of harm was not as imminent as she claimed [17].

9.Furthermore, (i) state protection would be available to her [19]-[25]; (ii) internal relocation would be viable [18], [26]-[27] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [28]-[33], Persecution risk [34]-[38] or Torture risk [39]-[42].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 4 March 2019, the Board conducted an oral hearing.

11.During the hearing, the applicant further claimed that she and her husband used the borrowed money from the creditor to purchase land and had built a shop [56]. She also claimed that her husband had relocated to Korea and that the creditor had written a death-threatening letter to him [73]-[74].

12.The Board noted there were significant variations and inconsistencies between the applicant’s written claims and her oral evidence regarding (i) her immigration history to Hong Kong; (ii) the timing of the loan and (iii) her repayment of loan instalments [87]-[88]. There was also no independent corroboration to support her claim [89] and that her explanation for the delay in seeking protection was unconvincing [95]. The applicant’s lack of interest in selling the landed property further indicated she had no urgency to repay the loan to the creditor [96].

13.Based on such findings, the Board did not accept the applicant to be a credible witness or that aspects of her claims were credible [98]. It did not accept that the applicant and her husband borrowed money from the creditor, nor did it accept that the creditor threatened them with harm due to non-repayment of a loan [99].

14.The Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [8]-[26], [28]-[33], [101]-[119]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

15.The applicant has file Form 86 on 25 June 2019 for leave to apply for judicial review of the Board’s Decision.

16.The applicant has lodged a written submission, saying that she is unable to repay her debt to the creditor, who will torture her and her family. She has not raised any specific ground.

DISCUSSION

17.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

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

19.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.”

20.Having considered the evidence and for the reasons that the Board has given above, the Board finds that the applicant is not a reliable witness. It rejects her evidence in support of her claim.

21.The applicant has not been able to raise any valid reason to challenge the Board’s finding of the facts.

22.The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

23.The Court received a letter dated 3 September 2024 from the Immigration Department, informing it that the applicant had been removed on 4 December 2020. This letter does not change the Court’s decision.

DISPOSITION

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

The applicant was unrepresented and did not appear.