Case Document

100%Judiciary

HCAL1630/2018

[2019] HKCFI 2219

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1630 of 2018

BETWEEN

	Susilowati	Applicant
	and
	Torture Claims Appeal Board/Non-refoulement Claims Petition Office	1^st Putative Respondent
	The 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 Adjudicator 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 was permitted to stay in Hong Kong as a domestic helper until 22 July 2013. Her employment was prematurely terminated. She overstayed without the Director’s permission and was arrested by police. She was convicted of the relevant offence and was sentenced to 2 months’ imprisonment, suspended for 3 years. She was referred to the Immigration Department for investigation. She lodged her non-refoulement claim on 4 October 2013, supplemented by letters of 3 March 2014 and 22 March 2014.

3.In her statement given to the Director she said that her parents had borrowed money from a loan shark for their grocery shop. They were unable to repay. The loan shark pressed them for repayment or asked the applicant to marry him as repayment. The applicant is unwilling to do so, knowing that this loan shark is old and he used to abuse his wife for sexual gratification. She came to Hong Kong in order to avoid him. She said that she would not be able to relocate herself in Indonesia as her parents would be able to locate her.

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 under RC”).

5.By Notice of Decision dated 11 June 2015 (“the Director’s Decision”) and Notice of Further Decision dated 29 November 2017 (“the Director’s Further Decision”), collectively called “the Director’s Decisions”, the Director rejected her claim for the reason that he claim was unsubstantiated.

The Board’s Decisions

6.The applicant appealed to the Board and she attended a hearing before the Adjudicator on 24 October 2016.

7.By Decision dated 5 May 2017 and another Decision dated 9 August 2018 (“the Board’s Decisions”) and another Decision dated 9 August 2018 (“the Board’s Further Decision”), collectively call “the Board’s Decisions”, the Board refused her appeal and confirmed the Director’s Decisions.

8.The Board considered the applicant’s case and found that it accepted the facts as stated by the applicant. But based upon those facts, the applicant was unable to establish her claim in relation to the risks above [36]. It found that she was never harmed by the loan shark and it was a private business between herself and loan shark, concerning no convention reason (Prosecution risk) [37A]; she did not suffer any personal harm, therefore her case did not fall within BOR 3 risk; her past experiences did not fall within the meaning of section 37U of the Ordinance, therefore was outside the meaning of torture risk; and finally, if refouled, there was no reason that she would be subjected to BOR 2 risk [15 of the Director’s Further Decision]; that she would be able to relocate herself in Indonesia [44].

Application for leave to apply for judicial review

9.In her Form 86 under Order 53, rule 4 of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decision and the Board’s Decision respectively.

10.In her affirmation in support of her application dated 27 August 2018, the applicant relied upon the following grounds:

(1)   she did not obtain assistance on the language or legal assistance in her appeal to the Board;

(2)   she was not given any legal assistance for this application;

(3)   the Director and the Board did not maintain high standard of fairness;

(4)   no legal assistance for her BOR 2 risk;

(5)   the Board’s Decision was not read to her;

(6)   the Adjudicator failed to take into account her additional facts and ground;

(7)   the Board failed to consider her case properly, taking into account of the rapid changes in Indonesia; and

(8)   the Director failed to show his balancing when he preferred to the COI.

DISCUSSION

The Director’s Decisions

11.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.”

12.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 Decisions – out of time

13.Under Order 53, rule 4(1) RHC, the applicant has to take out her application for leave to make an application for judicial review within 3 months from the date when the grounds for the application first arose.

14.The applicant is out of time for making her application for leave for judicial review of the Board’s Decision (dated 5 May 2017). In accordance with the decision of the Court of Appeal in Kwok Cheuk Kin v Leung Chun Yin [2018] HKCA 419, CACV 110/2017 and CACV 162/2017, 23 July 2018, his application cannot proceed without this Court granting him an extension of time. See §28.

15.The applicant has not made an application for extension of time. Nor had she given any good reason for this Court’s consideration.

16.However, she was within time in respect of her application for leave for judicial review of the Board’s Further Decision.

17.The question is whether time should be extended for her application for leave for judicial review of the Board’s Decision.

18.The consideration of whether time should be extended for the applicant to take out this application should be the same as held by the Court of Appeal in Khan Mohammad Shadab [2018] HKCA 897, CAMP 75/2018, 1 December 2018, namely, (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.

19.This Court considers that time should be extended for the applicant for the following reasons.

a.     She is not legally represented.

b.     Although the delay is more than one year, it does not affect the putative respondent. In fact, her delay was contributed to the putative respondent’s request for additional information for assessing the BOR 2 risk.

c.     It is quite plausible that she was under the impression that she should lodge her application for leave for judicial review of the Board’s Decisions in one go. The Director had, in the letter dated 29 November 2017, asked her to give additional facts on all applicable grounds and he would give a further written decision.

d.     The Board had considered the material facts of its Decision as can be seen in paragraph 14 of the Further Decision.

e.     The Board’s Further can be reasonably regarded as the continuation of its first Decision.

20.I therefore exercise my discretion to extend time for her application for leave for judicial review of the Board’s first Decision dated 5 May 2017 up to the time for her application for leave for judicial review of the Board’s Further Decision dated 18 August 2018. I shall now consider her application.

21.The applicant appeared before me. She confirmed that she had no complaint against either the Immigration officer or the Adjudicator. She understands the Board’s Decision. She considered that she had had a fair hearing before the Board. I shall now consider her grounds above.

22.The applicant does not have the absolute right to legal representation at every stage of the proceedings as was held by the Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22. She did not language assistance is not a valid ground as held by the Court of Appeal in Re Sharma Poonam [2019] HKCA 804, 19 July 2019.

23.Grounds (1), (2) and (4) fail.

24.Grounds (3), (6) and (7) are her opinions without any evidence in support of them. They fail.

25.Ground (5) is inconsistent with what she said in court.

26.Ground (8) concerns the Board’s discretion as to what evidence should be adopted and given weight. It is a matter of common sense and experience of the Adjudicator. It will not be necessary for the Adjudicator to set out the reasons for exercising his discretion in the evaluation of the evidence before him. The applicant has not identified in what respects had the Adjudicator exercised his discretion unreasonably. This ground fails too.

27.It is obvious that the Board had accepted the facts as she alleged. It is quite clear that her case has nothing to do with state activities. It was purely a private matter of a loan shark trying to press for repayment of money and other advantages in lieu. The state should be able to provide protection for her. Having rigorous examination and anxious scrutiny of the Board’s application of the relevant statutory provisions and the Convention to the applicant’s case, this Court finds that the Board has come to the right conclusion.

28.All the grounds above are irrelevant to the finding of the facts by the Board. They are also inconsistent with what she said in court.

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

CONCLUSION

30.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave to apply for the judicial review. Accordingly, I dismiss her application.

Dated the 16th day of September 2019

	(Thomas WAN)
	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 the Applicant’s 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 16/09/2019 Susilowati 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 16/09/2019 The Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office 1^st Putative Respondent’s ref. no.: USM 1750/15/6/136/I115 (late) & BOR 1086/14/12/6/I88 The Director of Immigration 2^nd Putative Respondent’s ref. no.: QA T/C 467/15 & RBCZ/9001828/17 (formerly RBCZ/585/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)