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HCAL1801/2018
[2019] HKCFI 2044
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1801 of 2018
BETWEEN
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Solikhin Susiyanti |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
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 (Order by Deputy High Court Judge K.W. Lung):
THE APPLICATION
1. This is the applicant’s application for leave to apply for judicial review against the respective decisions of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).
The applicant
2. The applicant is a national of Indonesia. She arrived in Hong Kong on 29 September 2013 as a domestic helper. Her employment terminated prematurely. On 22 May 2014, she applied for extension of time to stay as a visitor. She was permitted to stay until 29 May 2014. However, she overstayed. On 14 May 2015 she surrendered to the Immigration Department. On 5 November 2015 she lodged a non-refoulement claim.
3. In her statements given to the Director and the Board, she claimed that if she was to return to Indonesia, she would be harmed or even killed by her husband because she intended to divorce him.
4. Her husband never worked after the marriage. She had to work as a domestic helper in Singapore and Hong Kong and sent money back to him. Her husband was a violent person. When she was pregnant in 2005, she discussed with him and asked for money. He hit her, pushed her head against the wall. There were two other occasions where her husband assaulted her, causing injury. She wanted to divorce him. He threatened to kill her if she divorced him. She was scared. She came to Hong Kong and worked as a domestic helper. She was unwilling to return to him.
The Director’s Decision
5. The Director considered her application in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);
b. Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);
c. 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
d. 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”).
6. By Notice of Decision dated 19 December 2017 (“the Director’s Decision”), the Director rejected her claim for the reason that her claim was not substantiated.
The Board’s Decision
7. The applicant appealed to the Board and she attended a hearing before the Adjudicator on 23 April 2018.
8. By Decision dated 24 August 2018 (“the Board’s Decision”), the Board refused her appeal and confirmed the Director’s Decision.
9. The Board considered the applicant’s case and found that there were inconsistencies between her statement and her oral evidence at the hearing [44]. The Board went further to say that even if it accepted her evidence in respect of her marriage problems and that her husband was violent towards her, it did not accept that there was a real chance or real risk that her husband would seriously harm or kill her, the reason being that she had been separated from her husband since 2006 and that she had returned to Indonesia twice without being hurt by her husband and that the Board did not believe that her husband would still pursue the matter by hurting her seriously after a period of over 12 years [48 & 49]. The Board had also taken into account her delay in seeking protection in Hong Kong. She had been residing in Hong Kong since 2006. It was not until 2015 when she discovered that she could no longer stay in Hong Kong, did she lodge her non‑refoulement [50]. The Board simply did not believe that she was ignorant of the fact that she could seek protection in Hong Kong. The Board therefore had doubt over her genuineness of her fear. [50]
10. In a nutshell, the Board did not believe she came to Hong Kong for protection.
Application for leave to apply for judicial review
11. In her Form 86 dated 3 September 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decision and the Board’s Decision respectively.
12. In her affirmation in support of her application dated 3 September 2018, the applicant relied upon the following grounds:
(1) procedural impropriety: failure to conduct sufficient inquiry into the relevant country of origin conditions;
(2) procedural impropriety/irrationality: failure to [give] reasons for assessment of lack of BOR 3 risk and/or sufficient basis to support conclusion of BOR 3 risk;
(3) error/misdirection in law: failure to consider her fear and severe pain and suffering intentionally inflicted from her husband who wanted to harm [her] and the psychological strains and threats to her if she returned to Indonesia; and
(4) no sufficient basis to conclude that she would not be at risk of being subjected to torture and or/CIDTP upon refoulement.
DISCUSSION
The Director’s Decision
13. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I had held that the applicant without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power than this Court to make investigations in the matter. The Board had considered his appeal and made its Decision.
14. Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap. 115 in relation to the powers of the Director and the Board, decided:
“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”
15. Since the applicant has not set out any exceptional circumstances, her application for leave simply fails in limine.
16. For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.
The Board’s Decision
17. The applicant appeared before me. She confirmed that she had no complaint against either the Immigration officer or the Adjudicator. She understands English and she understands the Board’s Decision. She considered that she had had a fair hearing before the Board.
18. It is obvious that the Board rejected her evidence in support of her claim.
19. Ground (1) is her opinion without any evidence in support of it.
20. Grounds (2) to (4) cannot sustain because the Board, for the reasons that the Adjudicator had given, simply did not believe her evidence. The Court of Appeal held that facts are to be found by the Director or the Board. See Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14.
21. The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.
CONCLUSION
22. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave to apply for judicial review. Accordingly, I dismiss her application.
Dated the 16th day of August 2019
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(Henry Ng)
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:
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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)).
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Sent to the Applicant on 16/8/2019
Solikhin Susiyanti
Applicant’s ref. no:
Nil.
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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 16/8/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 9708/17/12/375/I963
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 3528/17 (formerly RBCZ 14178/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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