Siti Maulida v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL2888/2018

[2019] HKCFI 1802

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2888 of 2018

BETWEEN

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

Following;

	consideration of documents only; or
	consideration of documents and oral submission by the Applicant in open court;

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 a national of Indonesia. She came to Hong Kong as a domestic helper on 27 February 2007 and was permitted to stay until 4 February 2008. Her employment contract was terminated prematurely. She was required to leave Hong Kong by 22 November 2007. She overstayed. On 9 July 2010, she surrendered to the Immigration Department. On 27 July 2010, she was convicted of the offence of overstaying and was sentenced to 6 weeks’ imprisonment. She lodged a non-refoulement claim on 9 February 2017.

3.She claimed that if refouled, she would be harmed or killed by the loan shark because her husband had borrowed a sum of money from him/her but failed to pay off the debt.

4.In her statements given to the Director and the Board, she said that in 2005, she came to Hong Kong as a domestic helper. In 2006, her husband wanted to start a business and he used her name to borrow money from a moneylender. She had no idea as to the terms of the loan. In 2007, she had lost contact with her parents and daughter. A friend of her told her that her husband had used her name to borrow a lot of money from the moneylender which he failed to repay. He had also re-married. He had escaped from the village to avoid ill-treatment from the moneylender. In 2013, her friend told her over the phone that the moneylender was looking for her and had threatened to kill her.

The Director’s Decision

5.The applicant had previously made a torture claim and her claim was rejected by an immigration officer on 16 November 2012, the Director considered her application only 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”).

6.By Notice of Decision dated 8 March 2017, the Director refused her claim for the reason that her claim was not substantiated.

The Board’s Decision

7.The applicant appealed to the Board and she attended a hearing before the Adjudicator on 11 April 2018.

8.By Decision dated 5 October 2018 (“the Board’s Decision”), the Board rejected her appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s evidence, and for the reasons set out in its Decision, it found the facts below.

a.  The applicant did not suffer any direct ill-treatment or threat from the moneylender. All were indirect verbal threats coming through a person who heard them from other people. Even if such evidence is accepted, it cannot establish any substantial ground to believe that there is real risk of harm if she returns to Indonesia [66].

b.  It is too far-fetched or only speculation to suggest that the moneylender will kill or harm her [67].

c.  There is no evidence to show that state agents were involved. It is in fact a private dispute between lender and debtor [68].

d.  State protection should be available to her [71].

e.  Internal relocation is a viable option for the applicant and it would not be too harsh for her. [96]

Application for leave to apply for judicial review

10.In her Form 86 dated 17 December 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.

11.In her submissions annexed to Form 86 and affirmation in support of her application, the applicant stated the grounds below in support of her application:

(1)  the Board had unlawfully fettered its decision by refusing her appeal;

(2)  the Adjudicator acted in a procedurally unfair manner in dealing with her appeal: the hearing bundle was given to her shortly before the appeal hearing without translation;

(3)  the Board’s Decision was unreasonable or irrational in the public law sense or is a result of procedural errors or unfairness: it relied upon the Country of Origin Information which were outdated and not officially recognized or simply hearsay;

(4)  the Board failed to meet greater care and duty owed to a self-represented claimant; and

DISCUSSION

The Board’s Decision

1.  The applicant appeared before me. She confirmed that she had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. She also confirmed that she understood the Director’s Decision as her lawyer had explained it to her. Her friend had explained to her the hearing bundle and she understood the Board’s Decision herself.

2.  I explained the Board’s findings in paragraph 9 to her and asked if she had any comments. She said that she had no comments on them.

3.  It is quite obvious that, apart from some fundamental facts such as her nationality, the Board did not accept the facts as stated by the applicant in support of her claim. Therefore, the applicant had no factual basis for her claim. Those grounds above are quite irrelevant.

4.  The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of facts by the Adjudicator was final [42].

5.  Grounds (1) and (2) are inconsistent with her evidence before me.

6.  Grounds (3) and (4) are her opinions without any evidence in support of them.

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

CONCLUSION

8.  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.

Dated the 22^nd day of July 2019

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