HCAL1911/2018
[2019] HKCFI 1281
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1911 of 2018
BETWEEN
Kartini
Applicant
and
The Adjudicator of the Torture Claims Appeal Board/
1st Putative Respondent
The Director of Immigration
2nd Putative Respondent
Application for Leave to Apply for Judicial Review
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 for judicial review against the respective decisions of the Adjudicator 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 as a domestic helper and was permitted to stay until 18 December 2014. Her employment was terminated prematurely. She overstayed. She surrendered herself to the Immigration Department on 1 December 2015. By way of written submissions respectively dated 22, 23 and 28 February 2017, she lodged her non-refoulement claim.
3. In her statements given to the Director and the Board, she claimed that if she was refouled, she would be harmed or killed by her husband and the creditors because she acted as the guarantor for her husband who owed the creditors a lot of money. Her husband was a drunkard and he always abused her with violence after drinking. He borrowed a lot of money for his timber business from the creditors, with her as the guarantor. She worked in Hong Kong as domestic helper and remitted money to her husband. But he did not repay the loans. The creditors came to her house together with other people and pressed for repayment of the loans. She was unable to pay. Her husband also threatened her to get money for the repayment of the loans or he would kill her.
The Director’s Decision
4. 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. 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 under RC”) .
5. By Notice of Decision dated 27 February 2018 (“the Director’s Decision”) , the Director rejected her claim for the reason that her claim was not substantiated.
The Board
6. The applicant appealed to the Board and she attended a hearing before the Adjudicator on 7 June 2018.
7. By Decision dated 24 August 2018 (“the Board’s Decision”) , the Board refused her appeal and confirmed the Director’s Decision.
8. The Board considered the applicant’s case and raised the concern that her evidence given to the Director was different from that she gave to the Board [§43 & §45]. Having assessed the differences in her evidence, the Board found:
“ 68. On the evidence before it, the Board does not accept the Appellant fears returning to Indonesia for the reason she has claimed, or for any other reason. The Board does not accept the Appellant’s husband took a loan in 2006 or 2011, and the Board does not accept the Appellant was a guarantor for any loan or that she has been threatened and assaulted by her husband or creditors or debt collectors in relation to a loan. The Board does not accept the Appellant’s husband or his creditors or debt collectors or anyone else will harm her for any of the reasons she has claimed, or for any other reasons, if she returns to Indonesia.
69. In light of the findings above, the Board considers the Appellant would not be at risk of any harm if she returned to Indonesia. The Board finds that there is not a real risk the Appellant would face any of the proscribed forms of harm should she return to Indonesia.”
9. In her Form 86 dated 11 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.
10. In the attachment to Form 86 in support of her application dated 11 September 2018, the applicant relied upon the following grounds:
(1) the Director’s Decision and the Board’s Decision are wrong;
(2) the Adjudicator had failed to give her sufficient time and chance to arrange relevant evidence in support of her case;
(3) the Director had not considered state acquiescence in her case;
(4) the state had not provided her with reasonable protection;
(5) the Director had not considered her argument before reaching his Decision and he had not given weight to the Country of Origin Information that supported her case; and
(6) the Director had failed to attain high standard of fairness in the assessment.
DISCUSSION
The Director’s Decision
11. 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.
12. The applicant has not set out any exceptional circumstances.
13. 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.”
14. The applicant’s application for leave for judicial review of the Director’s Decision therefore fails in limine. I dismiss her application.
The Board’s Decision
15. The applicant appeared before me. She confirmed that she had no complaint against either the Immigration officer or the Adjudicator. She understood the Director’s Decision because her friend had explained it to her. She also considered that she had had a fair hearing before the Board. Her friend had also explained the Board’s Decision to her.
16. It is obvious that as the Board rejected her evidence in support of her claim, she has no factual foundation in support of her claim.
17. I put the Board’s findings above to the applicant and asked for her comments. She said that she had no comments.
18. It seems that all of her grounds are irrelevant to the Board’s Decision.
19. Grounds (1), (4), (5) and (6) are her opinions without any evidence in support of them.
20. Ground (2) is irrelevant as she did not raise it with the Adjudicator and she was unable to identify what further evidence she would like the Board to consider.
21. Ground (3) does not sustain because there was no evidence that the government was involved in her case.
22. The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.
CONCLUSION
23. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave for the judicial review. Accordingly, I dismiss her application.
Dated the 23rd day of May 2019
(Henry Ng)
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 23/5/2019Kartini
Applicant’s ref. no:
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 23/5/2019
The Adjudicator of the Torture Claims Appeal Board/ st Putative Respondent’s ref. no.:
The Director of Immigration nd Putative Respondent’s ref. no.:
Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)
Form CALL-1