SITI JUMAIYAH v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL2562/2018

[2019] HKCFI 2271

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2562 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 (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.  This is the applicant’s application for leave to appeal 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 on 16 December 2007. Her employment contract was terminated prematurely. She overstayed and was arrested by police on 21 September 2010. She was convicted of an offence of breach of condition of stay and was sentenced to 4 weeks’ imprisonment suspended for 3 years. She had lodged a torture claim in 2010 but her application was rejected on 10 October 2012. She failed to report recognizance and absconded since 17 October 2012. She was re-arrested by police and transferred to the Immigration Department. She lodged her non-foulement other than “torture risk” on 25 March 2014.

3.  In her statements given to the Director and the Board, she claimed that if refouled, she would be killed by her ex-husband, Syamsul Arifin (“Arifin”).

4.  She divorced her husband in 1999. But she continued to remit money from Hong Kong to Indonesia on a monthly basis for four years for the upkeep of the children. Her husband borrowed money from the bank to build a house. However, she discovered that he did not use the money to build a house. She stopped remitting money to Indonesia. Her husband threatened to kill her. She did not report it to police in Indonesia because she thought the police could not protect her round-the-clock.

The Director’s Decision

5.  The Director considered her application in relation to the following risks:

a.  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”);

b.  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

c.  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”).

6.  By Notice of Decision dated 26 June 2017 (“the Director’s Decision”), the Director rejected her claim for the reason that her claim was not substantiated.

The Board

7.  The applicant appealed to the Board and she attended a hearing before the Adjudicator on 23 August 2018.

8.  By Decision dated 15 October 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 it would accept that she did marry to her ex-husband, who had borrowed money which he had to repay [60]. However, it did not accept that, if refouled, she would face a real risk of harm at the hands of her ex-husband [61 & 63]; that the bank people would harm her [64]; that her child would suffer from serious harm in Indonesia [65]. The Board also found that there would be police protection in Indonesia [66] and she would be in a position to relocate herself if necessary [67].

10.  In her Form 86 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.

11.  Attached to Form 86 in support of her application dated 14 November 2018, the applicant relied upon the following grounds:

(1)  the Director and the Board were wrong in their respective Decisions;

(2)  the Adjudicator failed to give her sufficient time and chance to arrange evidence in support of her case;

(3)  the Director failed to give due weight to the COI; and

(4)  the Director had failed to attain high standard of fairness.

DISCUSSION

The Director’s Decision

12.  In the decision 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 held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the appeal and made its Decision.

13.  The applicant has not set out any exceptional circumstances.

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.  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

16.  The applicant appeared before me. She confirmed that she had no complaint against either the Immigration officer or the Adjudicator. She considered that she had had a fair hearing before the Board. She understands English herself.

17.  I put the Board’s findings to her for her comments. She said that she was crying when she answered the Adjudicator’s questions and she was not clear about those questions. She said that she had told the Adjudicator about her problems. The Adjudicator had asked her if she needed a break or rest. She said no and asked the Adjudicator to continue with his questions.

18.  I find that the Adjudicator had discharged his duties properly in the hearing.

19.  It is obvious that as the Board rejected her evidence in support of her claim.

20.  All the grounds above are irrelevant to the finding of the facts by the Board. They are also inconsistent with what she said in court.

21.  Grounds (1) and (4) are her opinions without any evidence in support of them.

22.  Ground (2) and Ground (3) are irrelevant because the Board simply discredited her evidence. She has no factual basis in support of her claim.

23.  The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.

CONCLUSION

24.  Since the applicant’s application to apply for judicial review has no reasonable prospect of success, I refuse to grant her leave for the judicial review. 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