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HCAL 1842/2018
[2020] HKCFI 1547
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1842 of 2018
BETWEEN
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Wiji Utami |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
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 applicant 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 was absent on the day of hearing. In Re Abdus Salam [2019] HKCA 1091 at §22, the Court of Appeal held that in the circumstances, her application should be considered on its merits. I therefore consider her application on the papers.
The applicant
3. The applicant is an Indonesian national. She came to Hong Kong on 19 August 2010 as a domestic helper. Her contract was terminated, but she overstayed since 9 September 2011. On 14 November 2011, she gave birth to her son and on the same day, she was arrested by police for overstaying. She had obtained declaration of paternity against Hong Kong permanent resident status for her son from the Family Court. She lodged her non-refoulement claim by way of written signification respectively dated 26 January 2015 and 2 February 2015.
4. In support of her claim, she said that if refouled, she would be harmed or killed by her husband and father as she gave birth to her illegitimate son and had a loan. She met a man whilst working in Hong Kong. She gave birth to a son and the man disappeared. Her father knew about it and was angry. His husband also learned about this and said that he would not allow her to return home. Her passport in Indonesia was stolen by someone, who had used it to borrow money. The money-lender went to ask her father for repayment. This also enraged her father.
The Director’s Decision
5. 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”).
6. By Notice of Decision dated 28 March 2018 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated. There was no substantial ground for believing that she would be harmed or killed by her husband or her family [17]; state protection was available [24] and internal relocation was open to her [29].
The Board’s Decision
7. The applicant appealed to the Board against the Director’s Decision and she attended a hearing before the Adjudicator on 22 June 2018.
8. By the Board’s Decision, the Board rejected her appeal and confirmed the Director’s Decision.
9. The Board considered the applicant’s evidence and pointed out that she had given inconsistent evidence to the Director and at the hearing. She admitted finally that she did not worry about her husband and her father, and the only reason why she wanted to remain in Hong Kong was that her youngest son would receive better education in Hong Kong [31]. See paragraphs 27-33 of the Board’s Decision.
Application for leave to apply for judicial review
10. The applicant filed Form 86 on 5 September 2018 for leave to apply for judicial review of the Board’s Decision.
11. In her affirmation in support of her application, she did not set out any reasons nor did she say that the Board had committed any errors in reaching its decision.
DISCUSSION
12. 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.”
13. The applicant obviously has no reasonable prospect of success in her proposed judicial review.
CONCLUSION
14. 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 14th 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 14/7/2020
Wiji Utami
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 14/7/2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 11249/18/4/259/I1281
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 752/18 (formerly RBCZ 12197/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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