Wiwik Yuliarti v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL1695/2018

[2019] HKCFI 2247

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1695 of 2018

BETWEEN

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 a national of Indonesia. She first come to Hong Kong as a domestic helper and was allowed to stay until 8 February 2013. Her employment was prematurely terminated. She left for China on 13 April 2012. On 11 May 2012, she returned to Hong Kong as a visitor and was allowed to stay until 10 June 2012. She overstayed and was arrested by police on 2 October 2012. She was charged for overstaying without the Director’s permission and was sentenced to 4 days’ imprisonment. She was referred to the Immigration Department for further investigation. She raised a torture claim. But her application was rejected on 1 March 2013. She lodged her non-refoulement claim on 15 May 2014.

3.In her statements given to the Director and the Board, she claimed that in July 2008, she discovered her husband had affair with his co-worker. She confronted with her husband. He hit her causing her jaw bleeding and needed suturing. She asked for a divorce, but her husband refused. She moved to live with her maternal uncle, bringing with her the youngest daughter. He located her and took away her younger daughter. He threatened to kill her if she met the children again. She did not report the matter to the police because the police would ask for payment. She attempted to contact her children by going to the school. But she was told that they had changed the school. In January 2009, she came to Hong Kong and took up employment as a domestic helper. She claimed that she would be in danger if she returned to Indonesia.

The Director’s Decisions

4.As she had lodged her torture claim under Part VIIC of the Ordinance before and was rejected, on 1 March 2013 the Director considered her application 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”).

5.By Notice of Decision dated 15 July 2016 (“the Director’s Decision”) and by another Notice of Further Decision dated 26 September 2017 (“the Director’s Further Decision”), collectively called “the Director’s Decisions”, the Director rejected her claim for the reason that it was unsubstantiated.

The Board’s Decision

6.The applicant appealed to the Board and she attended a hearing before the Adjudicator on 27 February 2018.

7.By Decision dated 8 June 2018 (“the Board’s Decision”), the Board refused her appeal and confirmed the Director’s Decisions.

8.The Board considered the applicant’s case and found that it accepted her story that her husband had relationship with another woman and he hit her upon her confrontation with him. However, the Board found that she would not face any real danger from her husband if she returned to Indonesia since she had not been in contact with him for 9 years; that her husband had already gone through the Islamic ceremony of marriage with the woman and that there was no indication that he would do anything untoward to her [59]; that her children were then 19, 17 and 12 years old and that they would have the freedom of contacting her [60] and that she would obtain state protection or other protection from other organizations in Indonesia [61]. The Board further found that she was able to relocate herself in other places if she considered necessary [62].

Application for leave to apply for judicial review

9.In her Form 86 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 Decision respectively.

10.In her affirmation in support of her application dated 21 August 2018, the applicant relied upon the following grounds:

(1)  procedural impropriety – failure to conduct sufficient enquiry into the relevant country of origin conditions and failure to give reasons for assessment of lack of BOR 3 risk;

(2)  error/misdirection in law – taking into account irrelevant considerations including the manner of her latest departure from Indonesia; and failure to consider psychological aspects of BOR 3 risk or persecution risk; and

(3)  irrationality – no sufficient basis to conclude that she would not be at risk of being subjected to CIDTP upon refoulement.

DISCUSSION

The Director’s Decisions

11.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.

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

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.The applicant’s application for leave for judicial review of the Director’s Decisions therefore fails in limine. I dismiss her application.

The Board’s Decision

15.The applicant appeared before me. She confirmed that she had no complaint against either the Immigration officer or the Adjudicator. Her lawyer had explained the Director’s Decisions to her. She can read English and she understood the Hearing Bundle and the Board’s Decision. She considered that she had had a fair hearing before the Board.

16.All the grounds above are either her opinions without any evidence in support of it or they are inconsistent with what she said in court, such as her psychological problem, which she did not even mention in the hearing before the Adjudicator.

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

CONCLUSION

18.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 11th day of September 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