YENI SETYAWATI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL1687/2018

[2019] HKCFI 1912

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1687 of 2018

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

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions 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 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 an Indonesian national. She arrived in Hong Kong on 31 October 2010 as a domestic helper. She was allowed to stay until 18 August 2011. Her employment contract was terminated prematurely, but she overstayed without the Director’s permission. She was arrested by police and was referred to the Immigration Department for further investigation. On 4 March 2011, she lodged her non-refoulement claim.

3.  In her statements given to the Director and the Board, she said that if she was refouled to Indonesia, she would be harmed or killed by her brother, Supardi and the money‑lender, Suratno. Her brother had borrowed the money from Suratno and she was required to settle the debts. Her brother had forced her to repay his gambling debts by punching and kicking her. He even forced her to be a prostitute for earning money, which she refused. She had worked in Hong Kong before. Her brother demanded her to transmit money back to him and said that he would kill her if she did not do so. She also said that Suratno had threatened her and asked her to be a prostitute to earn money for repayment.

The Director’s Decision

4.  The applicant had previously made a torture claim and was subsequently treated as withdrawn on 28 December 2012. She did not seek to re-open the torture claim under the unified screening mechanism. Therefore, 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 25 October 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 attended the hearing before the Adjudicator on 30 May 2018.

7.  By Decision dated 9 August 2018 (“the Board’s Decision”), the Board refused her appeal and confirmed the Director’s Decision.

8.  The Adjudicator stated in the Board’s Decision that whilst her claim for non‑refoulement was consistent with her fear that she would be killed by her brother or forced into prostitution if she returns to Indonesia. However, after considering the inconsistencies in her evidence such as the purposes of the money borrowed [49]; that she was illegally trafficked to Hong Kong [56]; that there was no documentary evidence in support of the debts [57]; that she did not ask for non‑refoulement protection until nearly five years after her last employment contract was terminated and her visa expired [59], she finally found that the applicant was not a reliable witness and she rejected her evidence [60] and rejected her claims too [61].

Application for leave to apply for judicial review

9.  By Form 86 dated 21 August 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.

10.  In her affirmation in support of her application dated 21 August 2018, the applicant relied upon the grounds below:

(1)  they failed to conduct sufficient enquiry into the Country of Origin Information (“COI”);

(2)  they failed to give reasons for BOR 3 risk;

(3)  they took into account irrelevant considerations including the manner of her latest departure from Indonesia; 

(4)  they failed to consider the psychological impact on her because of BOR 3 risk, or the Persecution risk and the death threats; and

(5)  the Board failed to give sufficient reasons to say that she was not subjected to BOR 3 risks and persecution risks if she was to return to Indonesia.

DISCUSSION

The Direction’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 considered that she had had a fair interview before the Immigration officer and a fair hearing before the Adjudicator. She understood the Board’s Decision herself.

16.  I explained the Board’s comments above and asked her if she had any comments. She said that she had no comments on them.

17.  It is obvious that the Board had found that her evidence on the facts of her claim were not credible. In the circumstances, the applicant had no factual basis in support of her claim.

18.  Grounds (1), (2), (3) and (5) are her opinions, unsupported by any evidence. They have no relevance to the main reasons of the Board which rejected her appeal. They fail.

19.  As to ground (4), the applicant had raised no issue of her psychological problem before the Adjudicator. She cannot raise this issue before this Court. This ground fails too.

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

CONCLUSION

21.  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