Case Document

100%Judiciary

HCAL1438/2018

[2019] HKCFI 1910

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1438 of 2018

BETWEEN

	Rita Setiani	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	1^st Putative Respondent
	Director of Immigration	2^nd Putative Respondent

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

Following;

consideration of the documents only; or

consideration of the documents and oral submissions 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 respective decisions of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.The applicant is an Indonesian national. She arrived in Hong Kong on 1 January 2010 as a domestic helper and was allowed to stay until 26 October 2011. Her employment contract was prematurely terminated. She overstayed without the Director’s permission. She was arrested and sentenced to imprisonment for 2 months in 2012. She lodged her non‑refoulement claim on 19 May 2014.

3.In her statements given to the Director and the Board, she said that if she was to return to Indonesia, she would be killed by her stepmother, Anita and her father’s moneylender, Sukarno, who wanted to marry her. She further said that she had been treated badly by her stepmother, who beat her with stick; her father had borrowed money from Sukarno and he could not repay the loan; Sukarno proposed to marry her as settlement of the debts to her father; she refused and Sukarno had attempted to rape her. Therefore, she came to Hong Kong to avoid him.

The Director’s Decisions

4.The Director considered her 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 5 May 2015 (“the Director’s Decision”) and another Notice of Further Decision dated 20 April 2017 (“the Director’s Further Decision”), collectively called “the Director’s Decisions”, the Director rejected her claim for the reason that her claim was unsubstantiated.

The Board’s Decisions

6.The applicant appealed to the Board and attended the hearing before the Adjudicator on 25 August 2016.

7.By Decision dated 14 February 2017 (“the Board’s Decision”) and Decision dated 6 July 2018 (“the Board’s Further Decision”), collectively called “the Board’s Decisions”, the Board refused her appeal and confirmed the Director’s Decisions.

8.The Adjudicator stated in the Board’s Decision that he accepted the facts as alleged by the applicant [40]. However, he found that the applicant had not made out a case because there was no evidence that her risks fell within the Convention reasons in respect of Persecution risk [41A], the BOR3 risk for lack of minimum severity [41B] and the Torture risk for lack of state involvement [41C].

9.In the Board’s Further Decision, the Board found that there was no evidence that the applicant would be at BOR 2 risk [11].

Application for leave to apply for judicial review

10.By Form 86 dated 23 July 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decisions and the Board’s Decisions.

11.In her affirmation in support of her application, the applicant relied upon the following grounds:

(1)  the Adjudicator did not hold an oral hearing for her for the assessment of BOR 2 risk;

(2)  the Adjudicator failed to conduct sufficient enquiry into the Country of Origin Information (“COI”);

(3)  the Adjudicator did not explain why he should pick the COI that did not support her claim;

(4)  the Adjudicator did not consider that her country should carry out reforms to safeguard her safety in her country in accordance with paragraph 2 of the United Nations Committee’s General Comment No.2; and

(5)  the Adjudicator failed to consider the psychological impact on her by the injuries and the abusive language she was subjected to.

DISCUSSION

The Direction’s Decisions

12.In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. 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 had held that the applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power than this Court to make investigation in the matter. The Board had considered her appeal and made its Decision.

13.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.”

14.Since the applicant has not set out any exceptional circumstances, her application for leave simply fails in limine.

15.For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decisions.

The Board’s Decision

16.I note that the application is out of time for the Board’s First Decision but is within time for the Board’s Further Decision. This situation is caused by the Immigration Department’s unified screening mechanism. This new system separated the screening into two parts, the first being on the Torture risk, the BOR 3 risk and the Persecution risk; the second being on the BOR 2 risk only. It is a sensible operation by which time and costs can be saved. This is due to no fault of the applicant. I therefore grant the extension of time to the applicant for leave to apply for judicial review in respect of the Board’s Decision to coincide with time for the Board’s Further Decision and both Decisions should be heard together. Accordingly, I shall hear her application.

17.The applicant appeared before me. She confirmed that she considered that she had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator.

18.Under section 12 of Schedule 1A of the Immigration Ordinance, Cap 115, it is within the Adjudicator’s discretion that the Board may determine an appeal without hearing, having regard to the material before it and the nature of the issues raised, if it is satisfied that the appeal can be justly determined without a hearing. The Adjudicator had given his reasons for his decision in the Board’s Further Decision. Ground (1) fails.

19.Grounds (2) and (4) are her personal opinions without any evidence to support them. They are unsubstantiated allegations and must fail.

20.Ground (3) also fails because it is within the Adjudicator’s power of adjudication as to what evidence should be given weight and what evidence should be disregarded, using his common sense and experience as an Adjudicator. The applicant is unable to identify the specific problem or error. This Court should not interfere with the Adjudicator’s discretion in the finding of facts. See Re: Ali Haider CACV8/2018, [2018] HKCA 222 at paragraphs13 & 14.

21.Ground (5) fails because the applicant did not raise this issue to the Board at the appeal hearing.

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

CONCLUSION

23.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 29^th day of July 2019

(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 his solicitors must:
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)).		Sent to the Applicant on 29/7/2019 Rita Setiani Applicant’s ref. no: Nil.		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 29/7/2019 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office 1^st Putative Respondent’s ref. no.: USM 1518/15/5/50/I76 & BOR 488/17/4/137/I33 Director of Immigration 2^nd Putative Respondent’s ref. no.: QA T/C 166/15 & INCZ 9001099/17 (formerly RBCZ 933/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)