FATMAWATI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION AND ANOTHER

HCAL1740/2018

[2019] HKCFI 1797

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1740 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review against the respective decisions of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.  The applicant is a national of Indonesia. She arrived in Hong Kong on 22 December 2011 as a domestic helper and was allowed to stay until 22 December 2013. Her employment prematurely terminated on 2 February 2012. She overstayed without the Director’s permission and was arrested by police on 17 April 2013. She was referred to the Immigration Department on 18 April 2013 for further investigation. She lodged her non-refoulement claim on 13 March 2014.

3.  In her statements given to the Director and the Board, she claimed that if she was to return to Indonesia, she would be killed by her husband because she had an extramarital affair and was impregnated. She would also be killed by the employment agent’s people because of her default in repayment of money she owed to them. She owed the employment agent HK$21,000, of which she had only repaid HK$15,000.

The Director’s Decision

4.  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”).

5.  By Notice of Decision dated 5 December 2016 (“the Director’s Decision”), the Director rejected her application for the reason that her claim was not substantiated.

The Board’s Decision

6.  The applicant appealed to the Board and she attended a hearing before the Adjudicator on 4 July 2018.

7.  By Decision dated 8 August 2018 (“the Board’s Decision”), the Board refused her appeal and confirmed the Director’s Decision.

8.  The Board considered the applicant’s case and found that it accepted her story that her husband had knowledge of her affairs with another man in Hong Kong and got pregnant and he was furious about that. However, the last threat from him was in May or June 2013 [75]; that there was no evidence that her husband would be able to or have the inclination of locating her beyond the immediate confines of her home village and she might well relocate herself as she had done before [76]; that there was no substantial risk to her from her husband if she returned to Indonesia and with her age and ability, she could relocate herself [77].

Application for leave to apply for judicial review

9.  In her Form 86 dated 24 August 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decision and the Board’s Decision respectively.

10.  In her affirmation in support of her application dated 24 August 2018, the applicant relied upon the following grounds:

(1)   she did not have legal representation or language assistance for her appeal to the Board;

(2)   the hearing bundle was delivered to her shortly before the appeal hearing without translation;

(3)   the Board’s Decision was not read or translated to her;

(4)   therefore, there is a violation of the principle of high standard of fairness; and

(5)   the Adjudicator was wrong in his observation that she was safe if she relocated herself.

DISCUSSION

The Director’s Decision

11.  In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I had held that the applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power than this Court to make investigation in the matter. The Board had considered her appeal and made its Decision.

12.  Also, 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.”

13.  Since the applicant has not set out any exceptional circumstances, her application for leave simply fails in limine.

14.  For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.

The Board’s Decision

15.  The applicant appeared before me. She confirmed that she had no complaint against either the Immigration officer or the Adjudicator. She understood the Board’s Decision because she was assisted by her friend. She considered that she had had a fair hearing before the Board.

16.  It is obvious that the Board accepted her facts. However, with those facts, the Board applied the relevant statutory provisions and the Convention to her case. It found that her case did not fall within the protection of the relevant laws.

17.  The applicant does not have the absolute right to free legal representation at every stage of the proceedings as held by the Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 at §22. Ground (1) fails.

18.  Grounds (2) and (3) are inconsistent with what she said before this Court.

19.  Grounds (4) and (5) are her opinions without any evidence in support of them.

20.  The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.

CONCLUSION

21.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave to apply for judicial review. Accordingly, I dismiss her application.

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

Form CALL-1