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HCAL2529/2018
[2019] HKCFI 1799
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2529 of 2018
BETWEEN
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Umi Siti Surifah |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
1st Putative Respondent |
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The 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 (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 decision 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 had made a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (now referred to as Part VIIC of the Immigration Ordinance, Cap 115) and her claim was rejected by an immigration officer on 27 April 2012. On 9 May 2012, she petitioned to the Chief Executive of HKSAR. On 31 May 2012, her petition was rejected. For the Unified Screening Scheme, her claim under section 37U of the Ordinance was not considered.
3. In support of her claim, the applicant said that if refouled, she would be stoned to death by her husband and the people in her village because she had committed adultery with her brother-in-law in 2008, such act was caught by her husband together with three of his friends. Her husband was furious, trying to hit her. He was stopped by his friends. He asked her to be stoned together with the brother-in-law. Her father agreed to this punishment. She escaped and found her way to Hong Kong to work as a domestic helper.
The Director’s Decision
4. The Director considered her application in relation to the following risks:
a. 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”);
b. 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
c. 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 26 February 2018 (“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 19 June 2018.
7. By Decision dated 25 October 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 the applicant had failed to show genuine and substantial risk of being subjected to ill-treatment, that is stoning [65]. It had given the reasons in support of the conclusion: stoning was not a punishment allowed in Indonesia, though it might be done illegally [49-52]; her husband was not a hot temper person since he was able to restrain himself from hitting her at the sight of the adultery and it would be less likely that he would kill her after a period of ten years [52]. Since stoning is unlawful in Indonesia, she should have state protection in Indonesia [79]. Also, relocation is another option open to her [83].
Application for leave to apply for judicial review
9. In her Form 86 dated 12 November 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 27 August 2018, the applicant relied upon the following grounds:
(1) assistance on legal advice and translation were not provided to her for her appeal and this application;
(2) the hearing bundle and the Board’s Decision was not read or translated to her;
(3) the Board had not considered the social situations of the customary and religious culture and the administration was corruptive in Indonesia and that honour killing happened in there; and
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 considered that she had had a fair hearing before the Board. Her lawyer had explained the Director’s Decision to her. Her friend had explained the hearing bundle and the Board’s Decision to her.
16. I put the Board’s findings to her for her comments. She said that she was crying when she answered the Adjudicator’s questions and she was not clear about those questions. She said that she had told the Adjudicator about her problems. The Adjudicator had asked her if she needed a break or rest. She said no and asked the Adjudicator to continue with his questions.
17. I find that the Adjudicator had discharged his duties properly in the hearing.
18. It is obvious that as the Board rejected her evidence in support of her claim.
19. All the grounds above are irrelevant to the finding of the facts by the Board. They are also inconsistent with what she said in court.
20. Ground (1) does not stand as she is not entitled to free legal assistance at every stage of the proceedings. See Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 at [22].
21. Ground (2) fails as it is inconsistent with she said before this court
22. Ground (3) is irrelevant because the Board simply discredited her evidence. She has no factual basis in support of her claim.
23. The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.
CONCLUSION
24. 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.
Dated the 19th day of July 2019
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(Henry Ng)
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 19/7/2019
Umi Siti Surifah
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 19/7/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 10684/18/3/136/I1158
The Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 705/18 (formerly RBCZ 11404/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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