Case Document

100%Judiciary

HCAL2941/2018

[2019] HKCFI 2402

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2941 of 2018

BETWEEN

	Cuciyati Bt Rasman Turidah	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and oral submission 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:

THE APPLICATION

1.This is the applicant’s application for leave 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 in November 2015 and was permitted to stay until 16 September 2016. Her employment contract was terminated prematurely. She overstayed and was arrested by police on 19 May 2017. She was referred to the Immigration Department for further investigation. On 22 May 2017, she lodged a non-refoulement claim.

3.In support of her claim, she claimed that if refouled, she would be killed by her husband due to family dispute.

4.In her statements given to the Director and the Board, she said that she married her husband in 2011-2012, not knowing that her husband had already had a wife. Shortly after the marriage, her husband abused her from time to time, physically and verbally. He did not work and asked her to work for money. She gave birth to a son. In 2014, she had borrowed a loan of HKD 20,000 from Tarsono. She had used her land as the collateral for the loan. She had to pay installments to Tarsono. She came to Hong Kong in November 2015 to work as a domestic helper, remitting money back to her husband. Her husband married another woman and asked for money. He threatened that if she did not send him money, he would harm their son and kill her if she returns. She believed her husband would carry out his threat. She does not want to go back to Indonesia.

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 (“the HKBOR”) (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 4 April 2018, 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 17 August 2018.

8.By Decision dated 31 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 carefully. For the reasons set out in its Decision, it came to its conclusion for the reasons below.

a.  There was no evidence to show that there is a pattern of gross, flagrant or mass violations of human rights in Indonesia for the purpose of section 37ZI(5)of the Ordinance. [67]

b.  There were gaps, inconsistencies and other problems with the evidence, the Board rejected the evidence, both individually and cumulatively, in their entirety. [68]

c.  The Board found that there was not a real risk the applicant would face any of the proscribed forms of harm if she returns to Indonesia. [69]

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 21 December 2018, the applicant relied upon the grounds, which I shall summarize as follows:

(1)  the hearing bundle was given to her shortly before the appeal hearing and she did not have sufficient time to prepare her case;

(2)  the contents of the hearing bundle were in English and she was unable to obtain interpreter service;

(3)  she was confused at the appeal hearing;

(4)  the Adjudicator had not done sufficient research in the Country of Origin Information (“COI”) and her knowledge was not updated;

(5)  the Adjudicator had relied upon hearsay information and outdated material in relation to COI;

(6)  the applicant was not legally represented before the Board, which was in breach of procedural fairness; and

(7)  BOR 2 risk was assessed without screening.

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 confirmed that she understood the Director’s Decision as her lawyer had explained it to her. The interpreter of the Legal Aid Department has explained the hearing bundle to her. Her friend had explained to her the Board’s Decision.

13.I explained the Board’s findings above to her and asked if she had any comments. She said that she had no comments on them.

14.It is quite obvious that, apart from some fundamental facts such as her nationality, 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. Those grounds above are quite irrelevant.

15.The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42].

16.The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”

17.Grounds (1) to (3) fail as they are inconsistent with what the applicant said before this Court.

18.Grounds (4) and (5) are her opinions without any evidence in support of them. They fail.

19.Ground (6) fails in light of the Court of Appeal’s decision.

20.Ground (7) fails as BOR 2 risk was assessed in one go.

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 judicial review. Accordingly, I dismiss her application.

Dated the 27^th day of September 2019

	(Mike Mak)
	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 27/9/2019 Cuciyati Bt Rasman Turidah 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 27/9/2019 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 11250/18/4/260/I1282 The Director of Immigration Putative Interested Party’s ref. no.: QA T/C 846/18 (formerly RBCZ/1133/17) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)