HCAL 742/2019
[2023] HKCFI 684
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 742 of 2019
BETWEEN |
| | Diyah Ayu Astuti | Applicant |
| | and | |
| | Torture Claims Appeal Board/ | Putative |
| | Non-refoulement Claims Petition Office | Respondent |
| | and | |
| | Director of Immigration | Putative |
| | | Interested Party |
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 applies for leave to apply for judicial review of the Decision dated 22 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicant requested a hearing. She appeared before the Court on 17 October 2022.
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 27 March 2005 and was permitted to stay as a foreign domestic helper until 26 April 2006. However, her employment contract was terminated prematurely on 22 May 2005. She was therefore required to leave on or before 5 June 2005. She did not depart and had overstayed since 6 June 2005. On 27 January 2011, she was arrested by the police for overstaying. On 15 June 2011, she raised a torture claim which was eventually rejected by the Board on 1 March 2013. On 11 March 2013, she lodged the non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her fiancé Kumar as she refused to join his terrorist organization.
5. In brevity, the applicant engaged with Kumar in March or April 1999. In July 1999, Kumar started to pressurize her to join his terrorist group. The applicant refused. In two incidents, Kumar only verbally threatened her without harming her physically. The applicant had no information about the terrorist group. Yet, feared that the verbal threats would materialize, the applicant decided to seek protection in Hong Kong. Details of her claim are set out at paragraph 8 of the Notice of Decision dated 25 July 2018 by the Director (the “Director’s Decision”).
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 dismissed the applicant’s claim as the level of risk of harm from Kumar was assessed to be low. In elaboration, the Director found that (i) the applicant only encountered verbal threats, which failed to attain a minimum level of severity. Meanwhile, her claimed influence of the alleged terrorist group was a mere speculation and there was no evidence that Kumar could find her everywhere in Indonesia [14]-[17]; (ii) state protection would be available to her [18]-[24]; and (iii) internal relocation was a viable option [25].
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. Having considered the legal principles and the available documents, the Board decided that it could fairly dispose of the applicant’s appeal on paper without an oral hearing [15].
9. The Board recapped the applicant’s claim and her personal background [16]. After assessing the evidence, the Board accepted the factual bases of the applicant’s claim, namely, she was engaged with Kumar who demanded her to join a terrorist group [20]. The Board however found that the applicant had suffered no past harms; that Kumar had never carried out any physical attacks on her despite he had ample opportunities to do so; he had never harmed the applicant’s family; and that it had been 19 years since the applicant’s last contact with Kumar [22]-[27]. In addition, state protection and internal relocation were both viable alternatives [29]; [31]-[39].
10. For the above reasons, the Board rejected the applicant’s claim and dismissed her appeal.
Application for leave to apply for judicial review of the Board’s Decision
11. The applicant has filed Form 86 dated 18 March 2019 for leave to apply for judicial review of the Board’s Decision.
12. In her affirmation in support of her application, the applicant has raised the grounds below.
(1) She did not have legal representation for her appeal before the Board.
(2) She did not have interpretation service for her appeal and the Board’s Decision was not interpreted to her.
(3) It is procedurally unfair for the Board to determine her case and challenge her credibility without a hearing for her.
DISCUSSION
13. 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).
14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that she understood the Board’s Decision. But she submitted that she wanted to stay in Hong Kong instead of going back to Indonesia.
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 grounds as set out in paragraph 12 above do not assist her application. According to the Board’s Decision, the Board did not challenge the applicant’s credibility. It accepted her evidence as stated in her statement. On such evidence, the Board found that there is no real risk for her to return to Indonesia. Further, she will have state protection and the option of internal relocation. It is within the Board’s power under the law that a hearing can be dispensed with if the Board considers it is just to do so. See section 12 of Schedule 1A of the Ordinance[1]. The applicant has no valid ground to challenge this decision.
17. On the issue of no legal representation for her appeal, The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:
“22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah[2018] HKCA 14, Re Zahid Abbas[2018] HKCA 15, Re Tariq Farhan[2018] HKCA 17, and Re Lopchan Subash[2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”
18. On the issue of lack of interpretation service, The Court of Appeal in Re: Sharma Poonam[2019] HKCA 804, 19 July 2019 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.”
19. There is no valid ground to challenge the Board’s Decision.
20. 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.
21. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.
CONCLUSION
22. 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 17th day of March 2023.
| | (C.S. FUNG (Ms))
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
| | | | |
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). | | Sent to the Applicant
on 17 March 2023
Diyah Ayu Astuti
Applicant’s ref. no:
Nil. | | Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 17 March 2023
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 12745/18/8/15/I1409
Director of Immigration
Putative Interested Party’s ref. no.: ImmD/CR T/C 2369/18 (formerly RBCZ/2002804/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] 12. Determination of appeal without a hearing
The Appeal Board may determine an appeal without a hearing if, having regard to the material before it and the nature of the issues raised, the Board is satisfied that the appeal can be justly determined without a hearing.