Sentot Asep Muhaimin v. Mrs. Helena Lee, Esq.
Read the full judgment text of HCAL 1746/2018 on BabelCite. This High Court CFI judgment was delivered on 20 August 2019.
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.
Cited by 2 cases
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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
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge K.W. Lung:
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:
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:
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
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
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