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HCAL 2241/2018
[2022] HKCFI 1178
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2241 of 2018
BETWEEN
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Sri Atini |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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Director of Immigration |
Putative 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.
Observations for the Applicant:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the letter dated 12 September 2018, referring to it as the immigration officer’s Notice of Decision. In fact, the letter dated 12 September 2018 is the covering letter for the hearing bundle containing the Director’s Decision dated 28 August 2018 (the “Director’s Decision”).
2. Since she had appealed the Director’s Decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”), absent any exceptional circumstances, she cannot take out this application for the Director’s Decision[1]. Her application should refer to the Board’s Decision dated 9 April 2019 (“the Board’s Decision”).
3. There is another procedural irregularity. The date of this application by way of Form 86 is 15 October 2018, which predates the Board’s Decision. In theory, this application is a nullity as it cannot be made before the Board’s Decision. However, it is apparent that the applicant intends to take out the application against the Director’s Decision under appeal to the Board. Now the Board has delivered it decision dismissing her appeal, the applicant clearly intends to ask for leave to apply for judicial review of the Board’s Decision. This can be done by amending the date of Form 86 to a date after the date of the Board’s Decision.
4. By virtue of Order 2 of the Rules of the High Court (“RHC”), the applicant’s failure to amend Form 86 to amend the date of Form 86 is treated as an irregularity and will not nullify this proceeding. It will be amended upon the Court’s own motion below.
5. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that (1) the date of Form 86 is 16 April 2018; (2) the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party and (3) the decision in respect of which relief is sought is the Board’s Decision.
6. The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the RHC, the Court will deal with her application on paper.
The applicant
7. The applicant is a national of Indonesia. She entered Hong Kong on 13 November 2013 as a foreign domestic helper. When her employment contract ended on 13 November 2015, she did not depart and had overstayed since 14 November 2015. On 14 May 2016, she was arrested by the police for overstaying. On 30 May, 31 May, 7 June and 17 June 2016 respectively, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by the loan shark.
8. According to the applicant, she was informed by her father in 2014 that he owed a large sum of debt to the loan shark. However, her father passed away in 2015, leaving the repayment responsibility to the applicant. The loan shark started to threaten the applicant for the repayment and forced her to marry his son if she was unable to repay. In early 2016, the applicant negotiated with the loan shark for setting off the debt with a plot of land. The proposal was rejected as it was not sufficient to cover the debt. The loan shark also threatened her mother for her whereabouts and even hit her sister with a car as a threat. Out of fear, she stayed in Hong Kong for protection. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 28 August 2018 by the Director (the “Director’s Decision”) and paragraph 29 of the Board’s Decision as described below.
The Director’s Decision
9. The Director considered the applicant’s claim in relation to the following risks:
(1) risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
(2) risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);
(3) 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
(4) 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”).
10. By way of the Director’s Decision, the Director refused the applicant’s claim. The Director found that the level of risk of the applicant being harmed or killed upon refoulement was assessed to be low because (i) the low frequency and intensity of past ill-treatments indicated an unlikelihood of future risk of harm [13]-[15]; (ii) state protection would be available to her [16]-[22], and (iii) internal relocation was an option open to her [23]-[28].
The Board’s Decision
11. The applicant appealed the Director’s Decision to the Board. On 4 March 2019, the Board conducted an oral hearing for her appeal, during which the applicant was assisted with an interpreter [8]. In the applicant’s notice of appeal/petition, she stated that a woman was killed by a loan shark in her home country [40].
12. The Board explored the material aspects of the applicant’s claim and sought clarifications from her [41]-[59]. Having considered all the evidence, the Board found that there were significant inconsistences in the applicant’s evidence. In particular, the applicant was inconsistent in the following aspects: (i) the borrower of the debt; (ii) the sum of the debt; (iii) the time when she first talked to the loan shark; and (iv) the time when she last communicated with the loan shark [63]. Viewing these inconsistencies accumulatively and, without any cogent explanations, the Board refused to accept the applicant’s claimed fear of harm from the loan shark.
13. Thus, the Board rejected the applicant’s claim and dismissed her appeal.
Application for leave to apply for judicial review of the Board’s Decision
14. The applicant has filed Form 86 dated 15 October 2018 for leave to apply for judicial review of the Board’s Decision.
15. In her affirmation in support of her application, she enclosed the Director’s Decision, without stating any specific ground in support of her application.
DISCUSSION
16. 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
17. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
18. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”
19. There is no valid reason from the applicant to challenge the Board’s Decision.
20. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
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 for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 3rd day of May 2022
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(M.O. WONG)(Ms)
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 3 May 2022
Sri Atini
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 3 May 2022
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 13406/18/9/167/I1457
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 3459/18 (Formerly RBCZ 12529/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Re: Moshsin Ali, [2018] HKCA 549
“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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