TURSINIH v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1835/2018

[2020] HKCFI 1537

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1835 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The application 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.  The applicant is not legally represented and she did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to her. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 3 October 2019.

3.  Leave was granted to the applicant to amend Form 86 by deleting the Director of Immigration (“the Director”) as respondent, deleting the Board as interested party and by adding the Director as interested party.

The applicant

4.  The applicant is a national of Indonesia. She came to Hong Kong on 20 November 2015 as a domestic helper and was permitted to stay as such. On 2 March 2016, her employment was terminated and was required to leave on or before 16 March 2016. She overstayed since 17 March 2016. On 22 March 2016 she surrendered to the Immigration Department. She lodged her non-refoulement claim on 25 April 2016.

5.  In support of her claim, she said that if refouled, she feared that she would be harmed or even killed by her husband because she could not help him to repay his debt. Her husband had borrowed loans from her maternal uncle and his neighbour. He had pledged her mother’s farmland as security for the loans. He asked her to repay the debts for him. She refused to do so whereupon he slapped her and they had a struggle. He had asked her to repay the debts again. When she said she had no money, he slapped her and threw household furniture at her. She came to Hong Kong to work.

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 12 January 2017 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated. 

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision and she attended a hearing before the Adjudicator on 20 June 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 [34-36], came to the conclusion that she had fabricated her claims and she failed to make out her case [38].

Application for leave to apply for judicial review

11.  The applicant filed Form 86 dated 4 September 2018 for leave to apply for judicial review of the Board’s Decision.

12.  In her affirmation in support of her application, she did not set out any grounds in support of her application nor did she point out any errors committed by the Adjudicator in coming to her decision.

DISCUSSION

13.  The applicant appeared before me. She said that she was free to state her case before the immigration officer and the Adjudicator at the Board hearing.

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 applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

17.  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.

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

Form CALL-1