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HCAL 1045/2019
[2022] HKCFI 1689
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1045 of 2019
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Siti Aisyah Tosir |
Applicant |
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and |
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Torture Claims Appeal Board/ |
Putative Respondent |
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Non-refoulement Claims Petition Office |
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and |
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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 Decision of the Director, which is not amenable to judicial review as it had been dealt with by the Decision dated 8 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).[1] This will be rectified below.
2. The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent, the Director of Immigration (“the Director”) is the interested party and the relief sought is in respect of the Board’ Decision.
The applicant
4. The applicant is a national of Indonesia. She last entered Hong Kong in 2015 as a domestic helper. Her employment was prematurely terminated on 23 February 2016, but she overstayed. On 19 April 2016, she surrendered to the Immigration Department. On 8 September 2016, she lodged non-refoulement claim on the basis that, if refouled, she would be harmed or killed by (i) her husband, Masdi because she divorced him; and (ii) the debt collector because she failed to repay the debt borrowed by Masdi.
5. According to the applicant, in 2005, she married Masdi, knowing that he had an ex-marriage and bad habits of drinking and gambling. Shortly after the marriage, Masdi began treating her badly after drinking. He assaulted her with hands but did not hurt her. She did not report the matter to police either. In January 2006, he assaulted her again as he was drunk. He also kept contact with his ex-wife. She worked in Syria between 2007 and 2010. She learned that Masdi had borrowed a loan in her name from a female loan-shark. The loan-shark came to her house with her people to demand payment of the loan. She had no money to pay her. The loan-shark threatened to kill her by black magic. But they did not hurt her. She could not tolerate with Madi and left him. In 2014, she came to Hong Kong for domestic helper’s work.
The Director’s Decision
6. 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”).
7. By way of the Director’s Decision, the Director refused the applicant’s claim. The Director found that there was no substantial ground for believing that she would be subjected to harm or being killed upon her return because (i) the absence or low frequency and intensity of past ill-treatment indicated an unlikelihood of future risk of harm [15-21]; (ii) state protection would be available to her [21-26]; and (iii) internal relocation was an option open to her [27-28].
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. She attended a hearing before the Board. After the Board had explained the purpose and procedure of the hearing and the adjudicator having advised her that she was not obliged to answer his questions, but her decision of not answering his questions would probably lead to the negative assessment in relation to her general credibility [13], she decided not to answer the Board’s questions.
9. The Board assessed her evidence and found that her evidence within her knowledge was a truthful account [41]. However, there was hearsay evidence, which could not be relied upon for the facts. In any event, the Board accepted that she had been subjected to domestic violence whilst she was in Indonesia by her husband. On the totality of her evidence, the Board was not persuaded that she would face a real risk of being harmed or killed by the loan-shark upon return [61] nor would she be subjected to being harmed or killed by Masdi [64].
10. 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
11. The applicant has filed Form 86 dated 17 April 2019 for leave to apply for judicial review of the Board’s Decision.
12. In her affirmation in support of her application, the applicant enclosed the hearing bundle without stating any specific ground.
DISCUSSION
13. 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).
14. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
15. 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.”
16. There is no valid ground from the applicant to challenge the Board’s Decision. The adjudicator had considered her evidence and, for the reasons that he had given, found that she was not subjected to any real risk of harm from either the loan-shark or Masdi.
17. 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.
18. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.
CONCLUSION
19. 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 23rd day of June 2022
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(M.O. WONG)(Ms)
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 23 June 2022
Siti Aisyah Tosir
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 23 June 2022
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10002/18/1/275/I1020
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 3234/17 (Formerly RBCZ 13266/16)
Department of Justice,
Senior Assistant Law Officer
(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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