Sringatin Korin v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL2589/2018

[2019] HKCFI 2279

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2589 of 2018

BETWEEN

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

Following;

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”) with The Director of Immigration (“the Director”) as interested party.

The applicant

2.The applicant is a national of Indonesia. She came to Hong Kong as a domestic helper between 1999 to 2009. Her employment contracted was terminated on 4 March 2009. She overstayed and was arrested by the Immigration Department on 1 December 2015. She was convicted of the offence of breach of condition of stay and taking unapproved employment in Hong Kong. She was sentenced to 6 months’ imprisonment. She raised her non-refoulement claim on 12 February 2016.

3.In support of her claim, she claimed that if she was to return to Indonesia, she would be harmed or killed by her late husband’s loan shark, Andik.

4.In her statements given to the Director and the Board, she said that her late husband had borrowed money from Andik for his surgery for kidney disease. He passed away in 2000. She was at that time working in Hong Kong as a domestic helper. She only learned about this in 2003 when she returned to Indonesia. Andik demanded her to repay her husband’s loan from him. She paid 20 million Rupiah, which covered the interest only as according to Andik. She had no idea as to the interest rate for the loan. Andik threatened her that if she was unable to pay the debt, she had to marry him. She was unwilling to do so. She did not report this matter to police as she had no confidence in police herself.

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 20 April 2018 (“the Director’s Decision”), the Director refused 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 20 August 2018.

8.By Decision dated 26 October 2018 (“the Board’s Decision”), the Board rejected her appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s case and found that she was an unreliable witness and she had fabricated her case as in paragraph 52 of the Board’s Decision, she said:

“… …and having regard to the internal coherence of her statements, their consistency with each other and the relevant level of detail she has been able to provide, the Board has formed the view that the Appellant is not a witness of truth and that she has fabricated claims in relation to any risk of being harmed on account of an unpaid debt which was taken out by her late husband. While the Board is mindful of the fact that it is quite possible for the centerpiece of an Appellant’s claim to stand despite the presence of some exaggeration, uncertainty or even untruthfulness, this was not the case with the Appellant’s evidence.”

10.In her Form 86, the applicant applied for leave for judicial review of the Board’s Decision.

11.In her affirmation in support of her application dated 19 November 2018, the applicant relied upon the following grounds:

a.  the hearing bundle was given to her shortly before the appeal hearing and without translation;

b.  she was confused at the appeal hearing; and

c.  the Board had relied upon the source of news which is not officially recognized or it is simply hearsay.

DISCUSSION

The Board’s Decision

12.The applicant appeared before me. She confirmed that she had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. She also said that her lawyer had explained the Director’s Decision to her. Her friend had explained the Board’s Decision to her.

13.It is quite obvious that the Board did not accept the facts as stated by the applicant in support of her claim. Therefore, the applicant had no factual basis for her claim.

14.I have put the Board’s findings to her and asked her if she had any comments. She said that she had no comments on them.

15.Grounds (1) and (2) fail as they are inconsistent with what the applicant said before this Court.

16.Grounds (3) is her opinion without any evidence in support of it.

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 the judicial review. Accordingly, I dismiss her application.

Dated the 19^th 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