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HCAL 1900/2018
[2020] HKCFI 1851
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1900 of 2018
BETWEEN
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Sri Lestari Handayani |
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 Applican:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 3 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicant did not request an oral hearing. The Court will deal with her application on paper.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by replacing the Director of Immigration (“the Director”) with the Board as respondent and replacing the Immigration Department with the Director as interesting party.
The applicant
4. The applicant is an Indonesian national. She came to Hong Kong on 9 August 2012 on a working visa as a domestic helper. Her employment contract was terminated prematurely, but she overstayed and was arrested by police on 1 September 2014. She lodged her non-refoulement on 8 September 2014.
5. The applicant claimed that, if refouled, she would be harmed or killed by her brother‑in‑law, Teno. Teno had mistresses whilst her sister was pregnant. She and her brother together with two other men had assaulted Teno in Indonesia, breaking his leg. Fearing that Teno might take revenge on her, she came to Hong Kong and worked as a domestic helper. However, Teno was able to obtain her phone number and called her, demanding compensation. He also threatened to harm her brother in Indonesia. She had remitted some money to him, but she could not afford as her employment was terminated.
6. She converted to Catholicism in 2014. She told her family about this. Her family was furious. She considered that her family had disowned her. She considered that she would not be able to survive if she returned to Indonesia and Teno had also threatened her that he would harm her if she returned to Indonesia.
The Director’s Decision
7. 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”).
8. By Notice of Decision dated 27 June 2017 (“the Director’s Decision”), the Director refused her claim for the reason that there were no substantial grounds for believing that there would be any real and substantial risk of her being harmed or killed by Teno and/or his family members upon her return to Indonesia; that there were absence of any ill-treatment to her in the past, which is indicative of no future harm if she returned [13]; that state protection would be available to her [18]; that internal relocation was an option open to her [19]. Also, she was unable to establish BOR 2 risk.
The Board’s Decision
9. The applicant appealed to the Board against the Director’s Decision and attended the hearing on 25 May 2018.
10. By the Board’s Decision, the Board rejected her appeal and confirmed the Director’s Decision.
11. The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusion that it accepted the fact that she converted into Catholicism. But it did not accept the facts she claimed that her brother-in-law had extra-marital affairs or that she and her brother had assaulted Teno or that Teno had threatened her. The Board, having referred to the country of origin information, concluded that the fact that she had converted into Catholicism would not render her to any real risk of harm from other Indonesians of Muslim faith. See paragraphs 88, 89, 106 and 107 of the Board’s Decision.
12. On the basis of the evidence, the Board did not accept that she would be subjected to any of the risks above.
Application for leave to apply for judicial review
13. The applicant filed Form 86 on 11 September 2018 for leave to apply for judicial review of the Board’s Decision.
14. In her affidavit in support of her application, she did not set out any ground in support of her application. Nor did she say that the Board was in error in coming to its decision.
DISCUSSION
15. As the Board did not accept the facts in support of her claim and that she was under any real risk if she returned to Indonesia, her claim will fail.
16. 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.”
17. There is nothing to show that the Board had committed any error in the finding of the facts or in its application of the law to her 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 4th day of August 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 4/8/2020
Sri Lestari Handayani
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 4/8/2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 7688/17/7/69/I753
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1156/17 (formerly RBCZ 3001945/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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