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HCAL 1448/2019
[2024] HKCFI 405
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1448 of 2019
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BETWEEN
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Mudrikah |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
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.
Observation for the Applicant:
THE APPLICATION
1. This application has special features procedurally that must be clarified first.
2. On 29 August 2014, the application made her non-refoulement claim to the Director of Immigration (“the Director”) on Torture risk, BOR 3 risk and Persecution risk[1]. By Notice of Decision dated 23 March 2015, the Director rejected her application (“the Director’s First Decision”). She appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).
3. Before the Board heard her appeal, the applicant by letter dated 22 December 2016, applied to the Board to withdraw her appeal. By letter dated 23 December 2016, the Board, by reason of her application for withdrawal, dismissed her appeal and confirmed the Director’s First Decision.
4. By letter dated 22 February 2017, the Director invited the applicant to submit additional facts which she considered relevant to her non-refoulement claim on all applicant grounds for non-refoulement protection, including any other absolute and non-derogable rights und the Hong Kong Bill of Rights, including right to life under Article 2 (“BOR 2”).
5. The applicant failed to submit any additional facts to the Director for consideration of BOR 2 risk of her claim within the time as directed by the Director. The Director therefore proceeded to assess her claim on BOR 2 risk. Having considered the evidence, the Director, by Notice of Further Decision dated 16 March 2017 (“the Director’s Second Decision”), found that the applicant failed to establish any personal and real risk of being arbitrarily deprived of her life in violation of the BOR 2 risk upon her return to Indonesia.
6. The applicant then appealed the Director’s Second Decision to the Board.
7. On 20 November 2018, the applicant attended hearing before the Board and she answered the questions put to her by the adjudicator.
8. Having considered the applicant’s evidence at the hearing, the Board, by Decision dated 3 May 2019 (“the Board’s Second Decision”), dismissed the applicant’s appeal for the reasons that her evidence was not believable [26]; that her evidence given to the immigration officer was different from her evidence before the Board [36]; that she had stayed in Hong Kong without permission of the Director for over 3 years without raising non-refoulement claim and she took up unapproved employment, which showed that she was not a genuine non-refoulement seeker in Hong Kong [39]; that her evidence, in material aspects of the case, was inherently incredible and contradictory [40]; and that she will not be subjected to BOR 2 risk if she returns to Indonesia; that state protection will be available to her [46] and that internal relocation will be an option open to her [49].
9. The applicant applies for leave to apply for judicial review of the First Decision of the Director and the Board’s Second Decision.
10. A hearing was fixed for the applicant to take place on 28 August 2023. However, the applicant was absent without prior notice to the Court. The Court therefore decided to deal with her application on paper.
11. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.
The applicant
12. The applicant’s case can be briefly stated. The applicant came to Hong Kong to work as a domestic helper on 26 October 2008. Her employment contract was prematurely terminated on 9 March 2010, but she did not depart. She overstayed in Hong Kong without the Director’s permission since 24 March 2010. She was arrested by police for remaining in Hong Kong illegally and taking up unapproved employment and was convicted and sentenced to 5 months’ imprisonment. She raised her non-refoulement on 29 August 2014. She claimed that if refouled, she would be harmed or killed by the loan creditor because her parents could not repay the loan which they borrowed under her name and she did not want to marry the loan creditor to settle the loan.
Application for leave to apply for judicial review of the Board’s Decision
13. The applicant has filed Form 86 dated 28 May 2019 for leave to apply for judicial review of the Director’s First Decision and the Board’s Second Decision.
14. The applicant has, in her affirmation, raised the grounds below.
(1) The Director’s Decision and the Board’s Decision are wrong.
(2) The Director did not consider state acquiescence.
(3) The Board had place too much weight on the country of origin information without due consideration to her situation.
(4) The Director had not given due weight to the corrupt and incompetent administration of the government of Vietnam.
(5) The Board was unfair in the proceedings.
(6) The Board’s Decision was irrational.
DISCUSSION
15. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
16. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
17. The applicant’s application for leave against the Director’s First Decision is untenable and should be dismissed in limine as she had already appealed the Director’s First Decision to the Board[2] and she had withdrawn her appeal subsequently.
18. As to her application for leave for judicial review of the Board’s Second Decision, she did not dispute that she had withdrawn her appeal against the Director’s First Decision. The Director had dismissed her BOR 3 risk in the Director’s First Decision. The Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, 7 January 2022, held:
“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”
19. Also, the Board had, for the reasons given in paragraph 8, found her evidence in support of her claim on BOR 2 risk incredible and dismissed her claim on BOR 2 risk.
20. The grounds raised by the applicant under paragraph 14 are mainly the grounds against the Director’s First Decision. Her appeal against the Director’s First Decision was withdrawn by herself. Her grounds against the Board are her bare allegations without any evidence in support. They are not valid to challenge the Board’s Second Decision.
21. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.
CONCLUSION
22. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Second Decision. Accordingly, I dismiss her application.
Dated the 2nd day of February 2024.
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(Allen LEE)
for Registrar, High Court
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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 2/2/2024
Mudrikah
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 2/2/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 1430/15/4/122/I55
BOR 525/17/5/25/I39
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 259/15 (Formerly RBCZ 3001325/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Torture risk refer to risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
BOR 3 risk refers to risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);
Persecution risk refers to 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”).
[2] Re: Moshsin Ali [2018] HKCA 549, Hon Lam VP and McWalter JA, 24 August 2018:
“45. … 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. … 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.”
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