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HCAL 1834/2018
[2020] HKCFI 1538
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1834 of 2018
BETWEEN
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Jumirah |
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 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 2 October 2019.
3. Leave was granted to the applicant to amend Form 86 by replacing her name in the column for the respondent with the Board, replacing the words in the column for the decision of which relief is sought with the Board’s Decision and by adding the Director of Immigration (“the Director”) as interested party.
The applicant
4. The applicant is a national of Indonesia. She came to Hong Kong in 2009 as a domestic helper and was permitted to stay until 7 June 2011. She overstayed and was arrested by Immigration Department on 9 January 2013. On 12 January 2013, she was convicted of the offence of breach of condition of stay and was sentenced to 3 months’ imprisonment. On 26 January 2016, she lodged a non-refoulement claim.
5. In support of her claim, she said that if refouled, she feared that she would be harmed by or arranged to marry her mother’s creditor Mr. Likun.
6. This happened in 2004 when her mother borrowed 200 million Indonesian Rupiah from Likun for her father’s medical expenses and other household expenses. Her mother was unable to repay the loan and interest. Likun’s subordinates came to her house and demanded repayment. They slapped her mother and left. In August 2004, Likun came with other men. He told her mother that if she could not repay, he wanted her to marry him. The applicant refused immediately. Likun slapped her on her cheek and left. He came back again later and demanded payment, suggesting she marry him. She refused again, he threw a hammer at her, hurting her right heel, which bled. Likun threatened to kill the family and he left. She moved to Saliwangi to stay with her friend’s relative. In 2006, she went to Singapore where she worked as a domestic helper. She returned to Indonesia in 2008. She learned that Likun was still looking for her family. She came to Hong Kong in May 2009.
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 17 August 2017 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated.
The Board’s Decision
9. The applicant appealed to the Board against the Director’s Decision and she attended a hearing before the Adjudicator on 23 April 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 she was not a witness of truth and that she had not told the Board the truth about critical aspects of her claims [105] and that there was not a real risk she would face of the proscribed forms of harm if she returned to Indonesia [112]. The Board had set out the inconsistencies in her evidence given to the Director and the evidence given to the Board. See paragraphs 79 to 100 of the Board’s Decision.
Application for leave to apply for judicial review
12. The applicant filed Form 86 dated 4 September 2018 for leave to apply for judicial review of the Board’s Decision.
13. In her affirmation in support of her application, she had written a few lines of Indonesian language. In the hearing when this Court explained the Board’s findings to her and asked her if she had any comments on the findings, she said she had no comments.
DISCUSSION
14. 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.
15. She had no comments on the Board’s findings. Since the Board did not believe her evidence on the facts of her case, she had no factual basis in support of her claim.
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. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.
CONCLUSION
18. 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 13th day of July 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 13/7/2020
Jumirah
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 13/7/2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8326/17/8/364/I816
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1425/17 (formerly RBCZ 10671/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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