HCAL 2520/2018
[2019] HKCFI 2843
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2520 of 2018
BETWEEN
Endang Susilowati Samuji
1st Applicant
Endang Susilowati Samuji Rihanna Blezhera
2nd Applicant
and
Torture Claims Appeal Board/
1st Putative Respondent
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:
THE APPLICATION
1. In Form 86, the minor’s name was deleted, resulting only Madam Endang Susilowati Samuji was the applicant. However, the evidence on the court’s file show that the relationship between the two applicants are mother and daughter. The daughter was born, as according to the birth certificate dated 18 October 2010, on 16 August 2010.
2. It is therefore obvious that the evidence of the mother will apply to her daughter. Both the mother and the daughter had appeared before the Adjudicator of the Appeal Board, ie, the 1st putative respondent. There is simply no reason that their applications should not be heard together.
3. Under Order 80, rule 3(2) of the Rules of the High Court (“RHC ”), it is not necessary to make an order to appoint the guardian ad litem of the daughter. I therefore directed that Form 86 should be amended by adding the daughter, with the mother as her guardian ad litem. The application will proceed accordingly.
4. Since the mother’s evidence will cover the daughter’s evidence, I shall, unless otherwise stated, set out the mother’s evidence below, describing her as the applicant without mentioning the daughter.
5. This is the applicant’s application for leave to apply for judicial review against the decision 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
6. The applicant is a national of Indonesia. She had been in Hong Kong as a domestic helper between 1994 to 2009. On 27 December 2009, she was arrested by police because she overstayed without the Director’s permission. The next day, she was referred to the Immigration Department for investigation. She was convicted of the charge of overstaying. On 16 August 2010, she gave birth to her daughter. On 1 September 2011, she was arrested by police for taking employment while being a person in respect of whom a removal order is force and was sentenced to 15 months’ imprisonment. On 22 April 2013 and 15 February 2104, she raised her torture claim.
7. In her statements given to the Director and the Board, she claimed that if refouled, she and her daughter would be harmed or killed by her father due to her conversion from Christianity to Islam and that her daughter was born out of wedlock.
8. She converted to Islam when she was working in Hong Kong. She found herself peaceful when she prayed in the Muslim Mosque. She told her father about her conversion. Her father was very angry on hearing this and he asked her to convert back to Christianity. She refused to do so. Her father told her that he would disown her. Sometime later whilst still in Hong Kong, she had relationship with an Egyptian visitor. She gave birth to a child on 16 August 2010. She told her father about it. Her father was furious and said that he disowned her and he did not want to see her again.
The Director’s Decision
9. In March 2011, the applicant and her daughter had lodged a torture claim under Article 3 of the Convention, which is equivalent to Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance ”). The application was rejected, and on appeal, it was also refused on 26 November 2012. The Director therefore 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. 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 under RC ”).
10. By Notice of Decision dated 16 April 2018 (“the Director’s Decision ”), the Director rejected her claim for the reason that her claim was not substantiated.
The Board
11. The applicant appealed to the Board and she attended a hearing before the Adjudicator on 15 August 2018.
12. By Decision dated 12 September 2018 (“the Board’s Decision ”), the Board refused her appeal and confirmed the Director’s Decision.
13. The Board considered the applicant’s case and it accepted the applicant’s alleged facts. However, it found that she was unable to show that her case was covered by the Convention for protection. Below are the reasons.
1. It is unlikely that her father would harm her and her daughter. [34] There is no evidence of BOR 3 risk.
2. Effective state protection is available to her. [39]
3. Internal relocation is a possible option for her and her daughter. [43]
4. There is insufficient evidence to establish risk under Persecution risk under RC. [48]
5. There is no evidence of risk of life under BOR 2 risk. [52]
14. In her Form 86 under Order 53, rule 3 of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Director’s Decision and the Board’s Decision respectively.
15. In her affirmation in support of her application dated 9 November 2018, the applicant relied upon the following grounds:
1. the Director did not consider that she would probably be subjected to domestic violence in Indonesia because of the birth of the child was out of wedlock;
2. by reference to the findings of the Department of Foreign Affairs and Trade, many women are subjected to domestic violence or even sexual violence in Indonesia;
3. the Director’s Decision did not discuss state protection for her situation; and
4. the Board’s Decision was not translated to her and she did not understand it.
DISCUSSION
The Director’s Decision
16. 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.”
17. The applicant’s application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. I dismiss her application.
The Board’s Decision
18. The applicant appeared before me. She confirmed that she was able to speak freely and tell her story fully to the Immigration officer and the Adjudicator. Her lawyer had explained the Director’s Decision to her. Her friend had explained the Board’s Decision to her.
19. I put the Board’s findings to her for her comments. She said that she had no comments.
20. It is obvious that as the Board accepted her evidence in support of her claim.
21. The question turns on whether the Board had applied the law and Convention to her case appropriately. Having “rigorous examination and anxious scrutiny” of the Board’s Decision, it is obvious that the Board had carefully considered each of the above risks, applying the appropriate statutory provision and the Convention to the facts of the case and came to its conclusion.
22. Ground (1) is her opinion without any evidence in support of it.
23. Ground (2) would not assist her because those are the statistics of the general situations about women abuse in Indonesia. She has not been able to state in what respect would the information assist her case.
24. Ground (3) should have been submitted to and considered by the Adjudicator. It will not assist her in this application.
25. Ground (4) is inconsistent with her evidence in court. However, I had explained the Board’s findings to her and asked for her comments. She said that she did not have any comments.
26. The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.
CONCLUSION
27. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave to apply for the judicial review. Accordingly, I dismiss her application. This applies to her daughter’s application as well.
Dated the 21st day of November 2019
(Mike Mak)
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 :
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);
Sent to the 1st and 2nd ApplicantsEndang Susilowati Samuji; Endang Susilowati Samuji Rihanna Blezhera alias Rihanna Blezhera
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 21/11/2019 Torture Claims Appeal Board/Non-refoulement Claims Petition Office st Putative Respondent’s ref. no.:Director of Immigration nd Putative Respondent’s ref. no.: QA T/C 605/18 (formerly RBCZ 2000327/14) & QA T/C 606/18 (formerly RBCZ 11314/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)
Form CALL-1