Case Document

100%Judiciary

HCAL2555/2018

[2019] HKCFI 2231

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2555 of 2018

BETWEEN

	Setyo Deno Wuryantari	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 decision 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 a national of Indonesia. She arrived in Hong Kong on 25 November 2014 as a domestic helper and was permitted to stay until 25 November 2016. Her employment terminated prematurely. But she overstayed and was arrested by police on 30 October 2015. On 3 November 2015, she was convicted of the offence of breach of condition of stay and was sentenced to four weeks’ imprisonment suspended for three years. By way of 8 letters between 9 December 2015 to 19 December 2015, she lodged a non-refoulement claim.

3.In her statements given to the Director and the Board, she claimed that if refouled, she would be killed by her husband, Mr Untung Suyatno due to domestic violence.

4.She married to her husband in 1996. Since then, he was addicted to drinking and got drunk from time to time. He did not work and relied upon her to support the family. She came to Hong Kong to work as a domestic helper in 2000. When she returned to Indonesia in 2003, her husband began abusing her with violence by slapping and kicking her. Since 2005, he went further by sexual violence on her. She worked in Hong Kong as a domestic helper between 2007 and 2014. She returned to Indonesia in 2014 when she discovered that her husband had a girlfriend. She confronted with him, asking for a divorce with him. He refused as he depended on her financially. He threatened her that he would kill her if she raised divorce with him. He also abused her with violence. She came to Hong Kong again in 2014. He sent her text and threatened to kill her if she divorced him.

The Director’s Decision

5.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”).

6.By Notice of Decision dated 28 February 2018 (“the Director’s Decision”), the Director rejected her claim for the reason that her claim was not substantiated.

The Board

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

8.By Decision dated 29 October 2018 (“the Board’s Decision”), the Board refused her appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s case and found that there were many inconsistencies in her evidence given to the Director and in the hearing [63]. Having assessed the evidence, the Board found in paragraph 74 of its Decision:

“ c) The Board does not accept …that she fears harm from her husband … and that she could not return to Indonesia because she was afraid of her husband.

d) The Board for the same reasons does not accept the Appellant’s claim that she was assaulted and threatened by her husband when she returned to Indonesia in June 2014 and that she subsequently hid at her brother’s home in June 2014 to avoid harm from her husband….that after she returned to Hong Kong she received threatening telephone calls and text messages from her husband … that in 2016 her sister told her that her husband was looking for her in Indonesia and was threatening to kill the Appellant if she returned to Indonesia.

10.In her Form 86 under Order 53, rule 3 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.

11.In her affirmation in support of her application dated 14 November 2018, the applicant relied upon the following grounds:

(1)   procedural impropriety: failure to conduct sufficient inquiry into the relevant country of origin conditions;

(2)   procedural impropriety / irrationality; failure to [provide] reasons for assessment of lack of BOR 3 risk and / or sufficient basis to support conclusion of lack of BOR 3 risk; and

(3)   error / misdirection in law: failing to take into consideration of psychological strain and threats to her personally or threats to her directly, to kill her.

DISCUSSION

The Director’s Decision

12.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.”

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

The Board’s Decision

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

15.I put the Board’s findings to her for her comments. She said that she was crying when she answered the Adjudicator’s questions and she was not clear about those questions. She said that she had told the Adjudicator about her problems. The Adjudicator had asked her if she needed a break or rest. She said no and asked the Adjudicator to continue with his questions.

16.I find that the Adjudicator had discharged his duties properly in the hearing.

17.It is obvious that as the Board rejected her evidence in support of her claim, she has no factual basis for her claim.

18.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.

19.Ground (1) is her opinion without any evidence in support of it.

20.Ground (2) and Ground (3) are irrelevant because the Board simply disbelieved her evidence.

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

CONCLUSION

22.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 Setyo Deno Wuryantari 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 Torture Claims Appeal Board/Non-refoulement Claims Petition Office 1^st Putative Respondent’s ref. no.: USM 10778/18/3/230/I1175 The Director of Immigration 2^nd Putative Respondent’s ref. no.: QA T/C 3781/17 (Formerly RBCZ/14577/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)