YENY RISTYOWATI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL1865/2018

[2019] HKCFI 2071

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1865 of 2018

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

Following;

	consideration of documents only; or
	consideration of documents and oral submission 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 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 had come to Hong Kong as a domestic helper in 2009, 2010 and 2012. She was permitted to change employer in 2014. Her employment was prematurely terminated. But she remained in Hong Kong without the Director’s permission. She was arrested by police on 6 March 2015. She lodged her non‑refoulement claim on 26 May 2015.

3.  In her statements given to the Director and the Board, she claimed that if she was to return to Indonesia, she would be ill-treated or killed by Nanda, her husband’s elder son, and Sri, her husband’s first wife. She worked in a shop and fell in love with her employer, who told her that he had divorced his former wife, Sri. They got married in 2002. She worked in his shop. In 2004, she discovered that her husband had not divorced Sri. Sri and the elder son Nanda went to the shop and abused her from time to time. Her husband’s health was getting from bad to worse. In 2006, he died. Sri and Nanda came to the shop and evicted her. They assaulted her as well. She came to Hong Kong and worked as a domestic helper in 2009. She returned to Indonesia again. However, she learned that Sri and Nanda were still looking for her. She then came back to Hong Kong.

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 15 September 2017 (“the Director’s Decision”), the Director rejected her claim 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 23 May 2018.

7.  By Decision dated 24 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 rejected the applicant’s claim that she was in fear of being ill-treated or killed by Nanda or Sri if she was to be refouled to Indonesia [52]. Having considered the evidence and given the reasons in its Decision, the Board concluded that her claim was based entirely on her own belief or speculation [94]. The Board also found that state protection was available to her [78-88]. Internal relocation was also another option open to her [89-93].

Application for leave to apply for judicial review

9.  In her Form 86 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 7 September 2018, the applicant relied upon the following grounds:

(1)  procedural impropriety: failure to conduct sufficient inquiry into the relevant country of origin conditions;

(2)  procedural impropriety/irrationality: failure to [give] reasons for assessment of lack of BOR 3 risk and/or sufficient basis to support conclusion of BOR 3 risk;

(3)  error/misdirection in law: failure to consider psychological strain and threats to her personally or threats to kill her; and

(4)  the Board and the Director failed to consider her fear and severe pain and suffering intentionally inflicted from Nanda and Sri and she would be subjected to torture from her husband’s family.

DISCUSSION

The Director’s Decision

11.  In the decision 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 held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had heard the appeal and made its Decision.

12.  The applicant has not set out any exceptional circumstances.

13.  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.”

14.  The applicant’s application for leave for judicial review of the Director’s Decision therefore fails in limine. I dismiss her application.

The Board’s Decision

15.  The applicant appeared before me. She considered that she had had a fair hearing before the Board.

16.  It is obvious that the Board rejected her evidence in support of her claim. The grounds above are facts related.

17.  Facts are to be found by the Director or the Board. The Court of Appeal held in Ali Haider CACV8/2018, [2018] HKCA 222 at §13:

“13. Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers….”

18.  The grounds above are her opinions not substantiated by any evidence. They fail.

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

CONCLUSION

20.  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