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HCAL 2502/2018
[2019] HKCFI 2991
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2502 of 2018
BETWEEN
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Yuni Ambarwati |
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. 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
2. The applicant is a national of Indonesia. She came to Hong Kong as a domestic helper and she was allowed to stay as such. Her contract was terminated prematurely and she overstayed. She was arrested by police for overstaying and was prosecuted. On 23 December 2015, she lodged her non-refoulement claim.
3. In support of her claim, she claimed that if refouled, she would be at risk of harm from her husband because he still wanted her to remit money to him. She also claimed that she was at risk of harm from loan sharks because of loans taken out by her husband which had not been repaid. She said that her husband was a furious man. He telephoned her to demand money from time to time and became very angry if he was turned down. The loan sharks also went to her parents’ home for repayment of loans.
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 6 October 2017, the Director refused 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 4 July 2018.
7. By Decision dated 18 September 2018 (“the Board’s Decision”), the Board rejected her appeal and confirmed the Director’s Decision.
8. The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to its conclusion refusing her appeal and confirmed the Director’s Decision. Below are the reasons:
1. It rejected the applicant’s claim that she feared harm from her husband or loan sharks if she returned to Indonesia [81 (c )].
2. It did not accept that she received threatening or abusive telephone calls from her husband when she was working in Hong Kong and for the same reasons did not accept her claim that she received a threatening telephone call from a loan shark in 2005 or 2006 or received any other threats from loan sharks [81 (d)].
3. It did not accept that the loan sharks went to her parents’ home for money from time to time and her husband threatened or abused her parents or damaged their property or that he threatened her parents that he would harm her [81(e)].
Application for leave to apply for Judicial Review
9. In her Form 86, the applicant applied for leave to apply for judicial review of the Board’s Decision.
10. In her affirmation in support of her application, the applicant relied upon the grounds below.
1. Failure to conduct sufficient inquiry into the relevant country of origin conditions.
2. Procedural impropriety/irrationality: Failure to give reasons for Lack of BOR 3 risk and/or sufficient basis to support conclusion of lack of BOR 3 risk.
3. Error/misdirection in law: Failing to take into account the considerations of psychological strain and threats to her personally or threats to her directly to kill her.
4. No sufficient basis to conclude that she would not be at risk of being subjected to torture and or/CIDTP upon refoulement.
DISCUSSION
The Director’s Decision
11. 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.”
12. 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
13. The applicant appeared before me. She confirmed that she had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. She also confirmed that she understood the Director’s Decision as her lawyer had explained it to her. She could read English herself and she understood the Hearing Bundle and the Board’s Decision.
14. I explained the Board’s findings above to her and asked if she had any comments. She said that she had no comments on them.
15. It is quite obvious that, apart from some fundamental facts such as her nationality, the Board did not accept the facts as stated by the applicant in support of her claim. Therefore, the applicant had no factual basis for her claim. Those grounds above are quite irrelevant.
16. The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42].
17. Grounds (1), (2) and (4) are her opinions without any evidence in support of them. They fail.
18. Ground (3) fails too as she did not raise this ground before the Board and she did not say what problem she had psychologically.
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 the intended judicial review. Accordingly, I dismiss her application.
Dated the 11th day of December 2019
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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 11/12/2019
Yuni Ambarwati
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 11/12/2019
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 8863/17/10/193/I863
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 2144/17(formerly RBCZ/10158/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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