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HCAL 134/2018
[2018] HKCFI 2812
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 134 of 2018
BETWEEN
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Imbuh Karina Binti Yamroni |
Applicant |
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and |
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Wong Hing-chun, ESQ.,
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 Bruno Chan:
Leave to apply for judicial review dismissed.
Observations for the Applicant:
1. The applicant is a 40-year-old national of Indonesia who first arrived in Hong Kong in May 2008 with permission to work as a foreign domestic helper until the expiration of her employment contract, but when her last employment contract was prematurely terminated on 29 January 2013, she did not depart and instead overstayed in Hong Kong until she was arrested by police on 21 September 2013. After she was referred to the Immigration Department for investigation, she lodged a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by certain villagers in her home town for her husband’s failure to pay their wages over his failed project in 2003. She has since been released on recognizance pending the determination of his claim.
2. By a Notice of Decision dated 22 December 2014 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“HKBOR”) (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).
3. In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and assessed the risk of harm from those villagers to the applicant upon her return to Indonesia as low due to the absence or low intensity and frequency of past ill-treatment from them, that in the absence of official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Indonesia with a large population of 253 million people spread across a vast territory that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other areas away from her home district such as Jakarta where it would be difficult if not impossible for those villagers to locate her.
4. On 5 January 2015 the applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which she attended an oral hearing on 2 November 2015 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board. On 22 February 2017 her appeal was dismissed by the Board upon finding that even if the risk of harm from those villagers still persists after all these years that both state protection and reasonable internal relocation alternatives are available to the applicant upon her return to Indonesia.
5. By a Notice of Further Decision dated 27 April 2017 the Director again rejected the applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).
6. On 31 May 2017 the applicant filed her Form 86 under HCAL 254/2017 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:
(1) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of her claim;
(2) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of her claim;
(3) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Indonesia;
(4) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Indonesia and misdirected herself as to the extended meaning of state protection;
(5) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;
(6) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;
(7) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in her decision; and
(8) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.
7. Her application came before Deputy High Court Judge Woodcock and upon hearing the applicant appearing in person, the learned Judge found no substance in any of the applicant’s grounds and with no realistic prospect of success therefore refused her application on 4 August 2017.
8. That decision was never appealed by the applicant who instead filed another Form 86 on 29 January 2018 in these proceedings now before me, and in her supporting affirmation of the same date she put forward exactly the same eight grounds as before in her previous application, when all of which had been found to be without substance and were rejected by the Court in her previous proceedings.
9. In the premises and as the principle of res judicata applies, this second application of the applicant is clearly an abuse of the court process, and is hereby accordingly dismissed.
Dated the 3rd day of January 2019.
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(NG Ka-wing)
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
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Notes for the Applicant:
If leave has been granted, the Applicant or his 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 3 January 2019
Imbuh Karina Binti Yamroni
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 3 January 2019
Wong Hing-chun, ESQ.,
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 674/15/1/26/I4
Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 9001135/17 (Formerly RBCZ 1535/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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