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HCAL 1455/2019
[2024] HKCFI 937
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1455 of 2019
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Umaeroh |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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Putative Respondent |
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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 dated 16 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), her application is dealt with on paper.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High 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
4. The applicant, aged 51, is a national of Indonesia. She last entered Hong Kong on 14 April 2014 via a domestic helper visa. Her employment contract expired, but she did not depart. The applicant overstayed since 25 September 2015 and she surrendered herself to the Immigration Department on 11 October 2017. On 18 January 2018, the applicant made a non-refoulement claim by written representation.
5. According to the applicant, when she returned to Indonesia from Hong Kong in June 2013, her husband threatened her to repay the debt for him, failing which she could not return to Indonesia or else he would kill her. The applicant claimed that she did not report the case to the police as she had no money to bribe them. During her two-week holiday in Indonesia, the applicant continued staying at her home in Indonesia during which her husband did not hurt her. She then returned to Hong Kong after two weeks and resumed work. Details of her story can be found in paragraph [6] of the Director’s Decision dated 25 June 2018.
The Director’s Decision
6. The Director considered the applicant’s claim in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);
c. 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
d. 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 dismissed the applicant’s claim. The Director found that: (i) the risk of being harmed by her husband upon return to Indonesia was low [10]-[14]; (ii) state protection will be available to her upon her return [16]-[19]; (iii) internal relocation is viable [15], [20]-[21] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2 or BOR 3 risk [22]-[27], Persecution risk [28]-[32] or Torture risk [33]-[35].
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 12 April 2019, the Board conducted an oral hearing.
9. Having considered the applicant’s evidence, the Board found the applicant’s story adequately consistent. However, the Board was not satisfied that the applicant’s case met any of the requirements under Persecution risk [39]-[56], BOR 2 or 3 risk [57]-[65] or Torture risk [66]-[75].
10. For the above reasons, the Board dismissed her appeal.
Application for leave to apply for judicial review of the Board’s Decision
11. The applicant has filed Form 86 dated 29 May 2019 for leave to apply for judicial review of the Board’s Decision.
12. The applicant asked for judicial review of the Director’s Decision and the Board’s Decision. She did not set out any specific ground in her affirmation in support of her application. Her application for judicial review of the Director’s Decision is untenable and must be dismissed in limine[1].
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, §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. The Board takes the view that even if the applicant’s evidence on the facts were accepted, the applicant failed to establish any of the applicable risks. On the evidence of the case, the Board was entitled to form such view. The applicant fails to raise any valid ground to challenge the Board’s Decision.
CONCLUSION
17. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 12th day of April 2024
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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 12/4/2024
Umaeroh
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 12/4/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 12261/18/7/11/I1385
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1988/18 (Formerly INCZ 10105/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Re: Moshsin Ali [2018] HKCA 549, Hon Lam VP and McWalter JA, 2 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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