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

HCAL 2387/2018

[2020] HKCFI 786

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2387 of 2018

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

Following;

(1)     Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 4 July 2018 be refused; and

(2)     Application for leave to apply for judicial review be dismissed.

IT IS FURTHER DIRECTED that:

(1)     If the applicants intend to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, they must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)     When filing the application for leave to appeal, the applicants must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3)     The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)     If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5)     Liberty to apply.

Observations for the Applicants:

THE APPLICATION

1.  In Form 86, only the first applicant was named. Since the second applicant is her son born in Hong Kong, he should be joined in this application as well. By virtue of Order 15, rule 6(3) and Order 20, rule 8 of the Rules of the High Court, I shall now make an order to add the second applicant and accordingly amend Form 86. I further amend Form 86 by deleting Immigration Department as proposed respondent and interested party and by replacing it with the Board and the Director as proposed respondent and interested party respectively.

2.  This is a joint application of the first applicant, who is the mother of the second applicant, and the second applicant. Since the grounds and evidence of the applicants are the same, I shall refer to the evidence of the first applicant, unless otherwise stated.

3.  The applicant is not legally represented and she did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicants to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. The applicants did not attend the scheduled hearing. I shall, therefore, assess her application on the papers.

4.  The applicants’ application is late because it was taken out more than three months after the date of the decision of the Appeal Board/Non-refoulement Claims Petition Office dated 4 July 2018 (“the Board’s Decision”). The application was taken out on 29 October 2018, there being 25 days’ delay. Unless the applicant has merits in her proposed judicial review, time should not be extended. The Court of Appeal in AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015.

5.  I will now take into account the merits of her case. The assessment is set out below.

The applicant

6.  The applicant is a national of Indonesia. She came to Hong Kong in August 2011 and was allowed to stay as such until 15 September 2015. She overstayed and surrendered herself to the Immigration Department on 25 November 2015. The second petitioner was born on 28 December 2015 and was also taken to surrender to the Immigration Department on 14 March 2016. The evidence of the mother will be evidence of her son. She lodged a non-refoulement claim on 15 December 2015.

7.  In support of her claim, she said that her husband in Indonesia had borrowed money from a loan shark in 2010. He asked her to repay the loan. She worked in Hong Kong as domestic helper and remitted money to him. She returned to Indonesia in 2013 and discovered that her husband had taken the money himself. He even pledged two motorcycles belonging to her mother for the loan. He refused to account for the money she had remitted to him. He complained that she was molesting him and threatened to kill her. She returned to Hong Kong and worked as a domestic helper. She met somebody in Hong Kong and became pregnant and as a result, the second applicant was given birth. This was known to her husband, who threatened to kill her and her son if they returned to Indonesia.

The Director’s Decision

8.  The Director first considered their 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”).

9.  By Notice of Decision dated 1 March 2017 (“the Director’s Decision”), the Director refused their claim for the reason that their claim was not substantiated.

The Board’s Decision

10.  The applicants appealed to the Board against the Director’s Decision and they attended a hearing before the Adjudicator on 27 March 2018.

11.  By Decision dated 4 July 2018 (“the Board’s Decision”), the Board rejected their appeal and confirmed the Director’s Decision.

12.  The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision [32], came to the conclusion that they had not made out a case for non-refoulement for the reasons below.

a.     She had never been ill-treated by her husband.

b.     The loan shark’s threat was only a verbal threat and no action had been taken against her.

c.     Her husband’s threat was also verbal threats only.

d.     She and her husband had no contact after she countered his husband with the money she remitted to him.

e.     Her husband did not call her again after learning that she had a baby.

f.     There would be state protection.

Application for leave to apply for judicial review

13.  The applicants filed Form 86 for leave to apply for judicial review of the Director’s Decision and the Board’s Decision.

14.  In her affidavit, she simply repeated that she would be in danger if she returned to Indonesia as her ex-husband would harm her and that he had been asking her to remit money to him.

DISCUSSION

The Director’s Decision

15.  In the decision 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 held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the appeal and made its Decision.

16.  The applicant has not set out any exceptional circumstances.

17.  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.”

18.  The applicants’ application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. 

The Board’s Decision

19.  The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42], subject to judicial review. There is no evidence to show that the Board had committed any error in the finding of the fact or in the application of the laws in the case.

20.  The applicants fail to show that they have any reasonable prospect of success in their proposed judicial review.

CONCLUSION

21.  Since the applicants’ application for leave to apply for judicial review is late and it has no reasonable prospect of success, I refuse to extend time for them to apply for leave to apply for the intended judicial review. Accordingly, I dismiss their application.

22.  It is further directed that:

(1)   If the applicants intend to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, they must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)   When filing the application for leave to appeal, the applicants must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3)   The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)   If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5)   Liberty to apply.

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