高等法院（行政）Deputy High Court Judge K.W. Lung9/10/2024[2024] HKCFI 2381
HCAL1762/2019
A A
B HCAL 1762/2019 B
[2024] HKCFI 2381
C C
IN THE HIGH COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E
COURT OF FIRST INSTANCE E
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
F F
NO. 1762 OF 2019
_____________
G G
BETWEEN
H Sunarti Applicant H
I I
and
J J
Torture Claims Appeal Board / Putative
Non-refoulement Claims Petition Office Respondent
K K
and
L L
Director of Immigration Putative
M M
Interested Party
_____________
N N
O O
Before: Deputy High Court Judge K.W. Lung in Court
P Date of Hearing: 24 June 2024 P
Date of Judgment: 10 October 2024
Q Q
R R
S JUDGMENT S
T T
U U
V V
- 2 -
A A
THE APPLICATION
B B
C C
1. The applicant applies for leave to apply for judicial review of the
D
Decision dated 5 June 2019 of the Torture Claims Appeal Board/Non- D
refoulement Claims Petition Office (“the Board’s Decision”).
E E
F
2. The applicant requested an oral hearing. However, she was F
absent at the hearing on 24 June 2014 without prior notice to the Court. I
G G
shall deal with her application on paper.
H H
The applicant
I I
J 3. The applicant, aged 43, is an Indonesian. She last arrived in J
Hong Kong on 2 November 2015 as a visitor and she overstayed since
K K
3 December 2015. The applicant surrendered to the Immigration Department
L on 16 December 2015 and made a non-refoulement claim on 20 July 2016. L
The claim was made on the basis that, if refouled, she would be harmed or
M M
killed by her creditor (“the creditor”) because she failed to repay her loan.
N N
4. According to the applicant, she took out a loan from the creditor
O O
in 2013 as she intended to start her own business. The applicant repaid loan
P instalments between January 2013 and April 2013, but she stopped doing so P
by May 2013. In June 2013, the creditor called to chase for repayment, for
Q Q
which the applicant replied that she would do so if she had money. The
R creditor then threatened that if she failed to repay her loan, her life would be R
in danger when she returned to Indonesia. Out of fear, the applicant changed
S S
her phone number. As the creditor was unable to contact her, she went to the
T home of the applicant’s mother to enquire when payment could be made. T
U U
V V
- 3 -
A A
Subsequently, with the consent of the applicant’s mother, the creditor took
B B
some household furniture from the house. Thereafter, the creditor went to the
C C
home of the applicant’s mother three more times in 2013 and would ask her
D
when repayment could be made whenever they met. D
E E
5. The applicant did not report the threat from the creditor to the
F police because she indeed owed her money. She also considered internal F
relocation not viable because she believed that the creditor would be able to
G G
locate her through her connections with her neighbours.
H H
6. Details of the applicant’s story can be found in paragraph 8 of
I I
the Director’s Decision dated 29 August 2018 (“the Director’s Decision”).
J J
The Director’s Decision
K K
L 7. The Director considered the applicant’s claim in relation to the L
following risks:
M M
N a. risk of violation of the right to life under Article 2 of Section 8 N
of the Hong Kong Bill of Rights Ordinance, Cap. 383
O O
(“HKBOR”) (“BOR 2 risk”);
P P
b. risk of torture or cruel, inhuman or degrading treatment or
Q Q
punishment (“CIDTP”) under Article 3 of Section 8 of the
R HKBOR (“BOR 3 risk”); R
S S
c. risk of persecution by reference to the non-refoulement principle
T under Article 33 of the 1951 Convention relating to the Status of T
U U
V V
- 4 -
A A
Refugees and its 1967 Protocol (“Refugee Convention”)
B B
(“Persecution risk”); and
C C
D
d. risk of torture under Part VIIC of the Immigration Ordinance, D
Cap. 115, (“the Ordinance”) (“Torture risk”).
E E
F
8. By way of the Director’s Decision, the Director dismissed the F
applicant’s claim. The Director found that notwithstanding the discrepancy
G G
regarding the timing of the incidents, the past action taken by the creditor
H indicated that she had no real intention to seriously harm or kill the applicant H
[16]. In any event, the applicant’s delay in seeking non-refoulement
I I
protection also showed that the risk of harm was not as imminent as she
J claimed [17]. J
K K
9. Furthermore, (i) state protection would be available to her [19]-
L [25]; (ii) internal relocation would be viable [18], [26]-[27] and (iii) the L
applicant’s case failed to meet any of the requirements under BOR 2 and
M M
BOR 3 risk [28]-[33], Persecution risk [34]-[38] or Torture risk [39]-[42].
N N
The Board’s Decision
O O
P 10. The applicant appealed the Director’s Decision to the Board. On P
4 March 2019, the Board conducted an oral hearing.
Q Q
R 11. During the hearing, the applicant further claimed that she and R
her husband used the borrowed money from the creditor to purchase land and
S S
had built a shop [56]. She also claimed that her husband had relocated to
T T
U U
V V
- 5 -
A A
Korea and that the creditor had written a death-threatening letter to him [73]-
B B
[74].
C C
D
12. The Board noted there were significant variations and D
inconsistencies between the applicant’s written claims and her oral evidence
E E
regarding (i) her immigration history to Hong Kong; (ii) the timing of the loan
F and (iii) her repayment of loan instalments [87]-[88]. There was also no F
independent corroboration to support her claim [89] and that her explanation
G G
for the delay in seeking protection was unconvincing [95]. The applicant’s
H lack of interest in selling the landed property further indicated she had no H
urgency to repay the loan to the creditor [96].
I I
J 13. Based on such findings, the Board did not accept the applicant J
to be a credible witness or that aspects of her claims were credible [98]. It did
K K
not accept that the applicant and her husband borrowed money from the
L creditor, nor did it accept that the creditor threatened them with harm due to L
non-repayment of a loan [99].
M M
N 14. The Board concluded that the applicant’s case failed to meet any N
of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution
O O
risk [8]-[26], [28]-[33], [101]-[119]. The Board therefore dismissed the
P applicant’s appeal and confirmed the Director’s Decision. P
Q Q
Application for leave to apply for judicial review of the Board’s Decision
R R
15. The applicant has file Form 86 on 25 June 2019 for leave to
S S
apply for judicial review of the Board’s Decision.
T T
U U
V V
- 6 -
A A
16. The applicant has lodged a written submission, saying that she
B B
is unable to repay her debt to the creditor, who will torture her and her family.
C C
She has not raised any specific ground.
D D
DISCUSSION
E E
F
17. The role of this Court is supervisory, meaning that it ensures that F
the Board complied with the public law requirements in coming to the
G G
Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-
H finding power vested in the Director and the Board. See TK v Michael C H
Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur
I I
Mst v Director of Immigration [2018] HKCA 524, §14 (1).
J J
18. The Court will bear in mind that the Board’s Decisions should
K K
be examined with rigorous examination and anxious scrutiny.
L L
19. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court
M M
of Appeal held:
N N
“13. (1) … …Assessment of evidence and COI materials and risk of harm,
O state protection and viability of internal relocation are primarily within the O
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
P unfairness or irrationality in the decision of the Board.” P
Q Q
20. Having considered the evidence and for the reasons that the
R Board has given above, the Board finds that the applicant is not a reliable R
witness. It rejects her evidence in support of her claim.
S S
T T
U U
V V
- 7 -
A A
21. The applicant has not been able to raise any valid reason to
B B
challenge the Board’s finding of the facts.
C C
D
22. The applicant therefore fails to show that she has any realistic D
prospect of success in her proposed judicial review of the Board’s Decision.
E E
F
23. The Court received a letter dated 3 September 2024 from the F
Immigration Department, informing it that the applicant had been removed
G G
on 4 December 2020. This letter does not change the Court’s decision.
H H
DISPOSITION
I I
J 24. I refuse to grant leave to the applicant to apply for judicial review J
of the Board’s Decision. Accordingly, I dismiss her application.
K K
L L
M M
N (K.W. Lung) N
Deputy High Court Judge
O O
The applicant was unrepresented and did not appear.
P P
Q Q
R R
S S
T T
U U
V V
A A
B HCAL 1762/2019 B
[2024] HKCFI 2381
C C
IN THE HIGH COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E
COURT OF FIRST INSTANCE E
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
F F
NO. 1762 OF 2019
_____________
G G
BETWEEN
H Sunarti Applicant H
I I
and
J J
Torture Claims Appeal Board / Putative
Non-refoulement Claims Petition Office Respondent
K K
and
L L
Director of Immigration Putative
M M
Interested Party
_____________
N N
O O
Before: Deputy High Court Judge K.W. Lung in Court
P Date of Hearing: 24 June 2024 P
Date of Judgment: 10 October 2024
Q Q
R R
S JUDGMENT S
T T
U U
V V
- 2 -
A A
THE APPLICATION
B B
C C
1. The applicant applies for leave to apply for judicial review of the
D
Decision dated 5 June 2019 of the Torture Claims Appeal Board/Non- D
refoulement Claims Petition Office (“the Board’s Decision”).
E E
F
2. The applicant requested an oral hearing. However, she was F
absent at the hearing on 24 June 2014 without prior notice to the Court. I
G G
shall deal with her application on paper.
H H
The applicant
I I
J 3. The applicant, aged 43, is an Indonesian. She last arrived in J
Hong Kong on 2 November 2015 as a visitor and she overstayed since
K K
3 December 2015. The applicant surrendered to the Immigration Department
L on 16 December 2015 and made a non-refoulement claim on 20 July 2016. L
The claim was made on the basis that, if refouled, she would be harmed or
M M
killed by her creditor (“the creditor”) because she failed to repay her loan.
N N
4. According to the applicant, she took out a loan from the creditor
O O
in 2013 as she intended to start her own business. The applicant repaid loan
P instalments between January 2013 and April 2013, but she stopped doing so P
by May 2013. In June 2013, the creditor called to chase for repayment, for
Q Q
which the applicant replied that she would do so if she had money. The
R creditor then threatened that if she failed to repay her loan, her life would be R
in danger when she returned to Indonesia. Out of fear, the applicant changed
S S
her phone number. As the creditor was unable to contact her, she went to the
T home of the applicant’s mother to enquire when payment could be made. T
U U
V V
- 3 -
A A
Subsequently, with the consent of the applicant’s mother, the creditor took
B B
some household furniture from the house. Thereafter, the creditor went to the
C C
home of the applicant’s mother three more times in 2013 and would ask her
D
when repayment could be made whenever they met. D
E E
5. The applicant did not report the threat from the creditor to the
F police because she indeed owed her money. She also considered internal F
relocation not viable because she believed that the creditor would be able to
G G
locate her through her connections with her neighbours.
H H
6. Details of the applicant’s story can be found in paragraph 8 of
I I
the Director’s Decision dated 29 August 2018 (“the Director’s Decision”).
J J
The Director’s Decision
K K
L 7. The Director considered the applicant’s claim in relation to the L
following risks:
M M
N a. risk of violation of the right to life under Article 2 of Section 8 N
of the Hong Kong Bill of Rights Ordinance, Cap. 383
O O
(“HKBOR”) (“BOR 2 risk”);
P P
b. risk of torture or cruel, inhuman or degrading treatment or
Q Q
punishment (“CIDTP”) under Article 3 of Section 8 of the
R HKBOR (“BOR 3 risk”); R
S S
c. risk of persecution by reference to the non-refoulement principle
T under Article 33 of the 1951 Convention relating to the Status of T
U U
V V
- 4 -
A A
Refugees and its 1967 Protocol (“Refugee Convention”)
B B
(“Persecution risk”); and
C C
D
d. risk of torture under Part VIIC of the Immigration Ordinance, D
Cap. 115, (“the Ordinance”) (“Torture risk”).
E E
F
8. By way of the Director’s Decision, the Director dismissed the F
applicant’s claim. The Director found that notwithstanding the discrepancy
G G
regarding the timing of the incidents, the past action taken by the creditor
H indicated that she had no real intention to seriously harm or kill the applicant H
[16]. In any event, the applicant’s delay in seeking non-refoulement
I I
protection also showed that the risk of harm was not as imminent as she
J claimed [17]. J
K K
9. Furthermore, (i) state protection would be available to her [19]-
L [25]; (ii) internal relocation would be viable [18], [26]-[27] and (iii) the L
applicant’s case failed to meet any of the requirements under BOR 2 and
M M
BOR 3 risk [28]-[33], Persecution risk [34]-[38] or Torture risk [39]-[42].
N N
The Board’s Decision
O O
P 10. The applicant appealed the Director’s Decision to the Board. On P
4 March 2019, the Board conducted an oral hearing.
Q Q
R 11. During the hearing, the applicant further claimed that she and R
her husband used the borrowed money from the creditor to purchase land and
S S
had built a shop [56]. She also claimed that her husband had relocated to
T T
U U
V V
- 5 -
A A
Korea and that the creditor had written a death-threatening letter to him [73]-
B B
[74].
C C
D
12. The Board noted there were significant variations and D
inconsistencies between the applicant’s written claims and her oral evidence
E E
regarding (i) her immigration history to Hong Kong; (ii) the timing of the loan
F and (iii) her repayment of loan instalments [87]-[88]. There was also no F
independent corroboration to support her claim [89] and that her explanation
G G
for the delay in seeking protection was unconvincing [95]. The applicant’s
H lack of interest in selling the landed property further indicated she had no H
urgency to repay the loan to the creditor [96].
I I
J 13. Based on such findings, the Board did not accept the applicant J
to be a credible witness or that aspects of her claims were credible [98]. It did
K K
not accept that the applicant and her husband borrowed money from the
L creditor, nor did it accept that the creditor threatened them with harm due to L
non-repayment of a loan [99].
M M
N 14. The Board concluded that the applicant’s case failed to meet any N
of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution
O O
risk [8]-[26], [28]-[33], [101]-[119]. The Board therefore dismissed the
P applicant’s appeal and confirmed the Director’s Decision. P
Q Q
Application for leave to apply for judicial review of the Board’s Decision
R R
15. The applicant has file Form 86 on 25 June 2019 for leave to
S S
apply for judicial review of the Board’s Decision.
T T
U U
V V
- 6 -
A A
16. The applicant has lodged a written submission, saying that she
B B
is unable to repay her debt to the creditor, who will torture her and her family.
C C
She has not raised any specific ground.
D D
DISCUSSION
E E
F
17. The role of this Court is supervisory, meaning that it ensures that F
the Board complied with the public law requirements in coming to the
G G
Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-
H finding power vested in the Director and the Board. See TK v Michael C H
Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur
I I
Mst v Director of Immigration [2018] HKCA 524, §14 (1).
J J
18. The Court will bear in mind that the Board’s Decisions should
K K
be examined with rigorous examination and anxious scrutiny.
L L
19. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court
M M
of Appeal held:
N N
“13. (1) … …Assessment of evidence and COI materials and risk of harm,
O state protection and viability of internal relocation are primarily within the O
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
P unfairness or irrationality in the decision of the Board.” P
Q Q
20. Having considered the evidence and for the reasons that the
R Board has given above, the Board finds that the applicant is not a reliable R
witness. It rejects her evidence in support of her claim.
S S
T T
U U
V V
- 7 -
A A
21. The applicant has not been able to raise any valid reason to
B B
challenge the Board’s finding of the facts.
C C
D
22. The applicant therefore fails to show that she has any realistic D
prospect of success in her proposed judicial review of the Board’s Decision.
E E
F
23. The Court received a letter dated 3 September 2024 from the F
Immigration Department, informing it that the applicant had been removed
G G
on 4 December 2020. This letter does not change the Court’s decision.
H H
DISPOSITION
I I
J 24. I refuse to grant leave to the applicant to apply for judicial review J
of the Board’s Decision. Accordingly, I dismiss her application.
K K
L L
M M
N (K.W. Lung) N
Deputy High Court Judge
O O
The applicant was unrepresented and did not appear.
P P
Q Q
R R
S S
T T
U U
V V