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HCAL1746/2018
[2019] HKCFI 2072
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1746 of 2018
BETWEEN
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Sentot Asep Muhaimin |
Applicant |
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and |
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Mrs. Helena LEE, ESQ. |
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 (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 decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration (“the Director”) as interested party.
The applicant
2. The applicant is an Indonesian national. He arrived in Hong Kong on 13 August 2015 as a visitor and was permitted to stay until 12 September 2015. He overstayed. He surrendered himself to the Immigration Department on 2 February 2016. He lodged a non-refoulement claim on 4 July 2016.
3. In his statements given to the Director and the Board, he said that if he was to return to Indonesia, he would be killed as he was unable to repay his debts to his creditor, Bustomi. The applicant borrowed a loan from Bustomi in 2005 for his recycling business. He was unable to pay the interest. In 2008, he closed down his recycling business and worked in construction sites. He bribed Bustomi’s subordinates so as to avoid being pressed for repayment of the loan. In 2014, he discovered that Bustomi had affair with his wife. They fought together. Bustomi attempted to assault him with the sword, but by chance hurt himself with that sword. He moved to his friend’s place to avoid Bustomi. In 2015, he met Bustomi together with his subordinates. Bustomi demanded repayment of the loan. He was unable to pay. He was attacked by Bustomi and his people. Bustomi threatened him to repay the loan or he would kill him or take his wife. He took his parents’ advice to come to Hong Kong.
The Director’s Decision
4. The Director considered his application in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);
b. 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”);
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”).
5. By Notice of Decision dated 31 July 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was unsubstantiated.
The Board’s Decision
6. The applicant appealed to the Board and he attended a hearing before the Adjudicator on 18 May 2018.
7. By Decision dated 22 August 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.
8. The Board considered the applicant’s case and found that the applicant’s evidence was riddled with discrepancies and “taking the evidence on the whole, I do not find the applicant’s evidence to be credible, and place little weight upon them.” [60]. Nevertheless, the Board applied the statutory provisions to the applicant’s claim and found that the acts and conduct had not attained the degree of severity in pain or suffering to fall within the definition of “torture” [85]; that there were no public officials involved [91]; that there was no evidence that there was a personal and real risk of the applicant being subjected to BOR 2 risk [147]; that the Board did not accept that the applicant would face a genuine and substantial risk of being subjected to BOR 3 risk [150]; and the applicant’s fear did not fall within the definition of persecution [154].
Application for leave to apply for judicial review
9. In his Form 86 dated 27 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 Board’s Decision.
10. In his affirmation in support of his application dated 27 August 2018, the applicant relied upon the following grounds:
(1) the hearing bundle was given to him shortly before the appeal hearing and he did not have sufficient time to prepare his case;
(2) the contents of the hearing bundle were in English and he was unable to obtain interpreter service;
(3) he was confused at the appeal hearing;
(4) the Adjudicator had relied upon hearsay information and outdated materials in relation to Country of Origin Information (COI);
(5) the BOR 2 risk was assessed without screening; and
(6) the Director and the Board reached their Decisions without understanding his situation.
DISCUSSION
The Board’s Decision
1. The applicant appeared before me. He confirmed that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. His friend had explained the contents of the hearing bundle and the Board’s Decision to him. He also confirmed that he understood the Director’s Decision as his lawyer explained to him. I explained the Board’s findings above to him and asked if he had any comments. He said that he did not have any comment.
2. It is quite obvious that the Board did not accept the facts as stated by the applicant in support of his claim. Therefore, the applicant had no factual basis for his claim.
3. Grounds (1) to (3) fail as they are inconsistent with what the applicant said before this Court.
4. Grounds (4) and (6) are his opinions without any evidence in support of it.
5. Ground (5) fails because BOR 2 risk was considered in the same screening with other risks.
6. The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.
CONCLUSION
7. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for judicial review. Accordingly, I dismiss his application.
Dated the 20th day of August 2019
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(Henry Ng)
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 20/8/2019
Sentot Asep Muhaimin
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 20/8/2019
Mrs. Helena LEE, ESQ
Putative Respondent’s ref. no.:
USM 8142/17/8/180/I802
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1298/17 (formerly RBCZ/12755/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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