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HCAL 1873/2018
[2020] HKCFI 1288
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1873 of 2018
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Wagiyah |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and
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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 30 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by deleting the Director of Immigration (“the Director”) as respondent and by deleting the Board and replaced it with the Director as interested party.
The applicant
3. The applicant is an Indonesian national. She came to Hong Kong as a domestic helper for a number of times, the last time being on 2 June 2014. She had committed an offence and was sentenced to four-week imprisonment. She lodged her non-refoulement by written representation on 7 August 2014.
4. In support of her claim, she said that if refouled, she feared that she would be harmed or killed by the loan shark.
5. The applicant claimed that in 2013 and 2014 she had borrowed two loans from two loan sharks and she was unable to repay the money to the loan sharks. She borrowed 450 million IDR from the first loan shark and 25 million IDR from the second loan shark. The loan sharks threatened to kill her and her daughter if she did not pay the debts. The second loan shark took away the title deed of her house. She had to move to live in her grandmother’s house. However, she did not feel safe and she came to Hong Kong to work as a domestic helper.
The Director’s Decision
6. 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”).
7. By Notice of Decision dated 23 November 2017 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated. The Director found that the level of risk as alleged was low [12]; state protection was available to her [16]; internal relocation was an option open to her [19] and the applicant failed to establish her claim under BOR 2 risk.
The Board’s Decision
8. The applicant appealed to the Board against the Director’s Decision and attended the hearing on 17 April 2018.
9. By the Board’s Decision, the Board rejected her appeal and confirmed the Director’s Decision.
10. The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusion that it did not accept that she feared returning to Indonesia for the reason she had claimed, or for any other reason. The Board also did not accept that the applicant owed money to anyone in Indonesia or anyone in Indonesia had any adverse interest in her or would harm her for any of the reasons she had claimed, or for any other reason, if she returned to Indonesia [103]. See detailed reasons in paragraphs 51 to 102 of the Board’s Decision.
Application for leave to apply for judicial review
11. The applicant filed Form 86 on 10 September 2018 for leave to apply for judicial review of the Board’s Decision.
12. In her affirmation in support of her application, she relied upon the grounds below in support of her application.
1. Procedural impropriety: failure to conduct sufficient inquiry into the relevant country of origin conditions.
2. Procedural impropriety/irrationality: failure to reason for assessment of lack of BOR 3 risk and/or sufficient basis to support conclusion of lack of BOR 3 risk.
3. Error/misdirection in law: failing to take into account the consideration of psychological strain and threats to her personally or threats to her directly to kill her.
4. Procedural impropriety: failure to consider the concept of extended state acquiescence as expounded by Lam J. (as he then was) in TK v Jenkins.
5. Procedural impropriety: failure to assess her fear properly. Her house had been taken over and she would be in danger if she returned to Indonesia.
DISCUSSION
13. The applicant appeared before me. She said that she was treated fairly by the immigration officer and the Adjudicator of the Board. Her lawyer had explained the Director’s Decision to her and the interpreter of the Board had explained to her the Board’s Decision.
14. I put the Board’s findings to her and asked her if she had any comments on them. She said that she had no comments.
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 five grounds above do not sustain because they are either her own opinions or bare allegations without any evidence or particulars in support of them.
17. There is nothing to show that the Board had committed any error in its application of the law to her case or in coming to its conclusions on the facts of the case.
18. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.
CONCLUSION
19. Since the applicant’s application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to grant her leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 24th day of June 2020
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(Mike Mak) |
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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 24/6/2020
Wagiyah
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 24/6/2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9407/17/12/I925
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 2425/17 (formerly RBCZ3001626/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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