Case Document

100%Judiciary

HCAL 1617/2018

[2019] HKCFI 2989

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1617 of 2018

BETWEEN

	Sutimah	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 the Applicant being absent 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.The applicant is not legally represented and she did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if the applicant had a fair screening before the Immigration office and the Board and if there are any further grounds in support of the application. In response to the Court’s letter, the applicant failed to appear before this Court. This Court will now consider her case on paper.

2.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”). But she put her own name in the column for the respondent. Had the applicant appeared in court, this error might be rectified immediately in court. In order to properly consider the applicant’s application, this Court shall proceed and treat the Board as the respondent as it is the only eligible party for the applicant’s application under the law. See Re: Moshsin Ali, [2018] HKCA 549 (CACV 54/2018) §45. The Director should be the interested party.

The applicant

3.The applicant is a national of Indonesia. She came to Hong Kong on 26 October 2008 as a domestic helper and was permitted to stay as such. On 20 December 2008, her employment contract terminated prematurely. She overstayed. on 27 February 2013, she was arrested by the Immigration Department for breach of stay. On 7 March 2014, she lodged a non-refoulement claim.

4.In support of her claim, she claimed that if refouled, she would be ill-treated or even killed by her ex-boyfriend. Her ex-boyfriend and she had been together since 2003. In 2006, her ex-boyfriend told her that he had affairs with her cousin, Yanti, who had been pregnant. She was angry and had a scuffle with him. He pushed her on the floor. He subsequently wanted to go back to her. She refused. He said he did not want to see her to live with another man or he would rather see her die. She feared that he might mean it.

The Director’s Decisions

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”).

6.By Notice of Decision dated 29 June 2015 and another Notice of Further Decision dated 3 November 2017, collectively (“the Director’s Decisions”), the Director refused her claim for the reason that her claim was not substantiated.

The Board’s Decisions

7.The applicant appealed to the Board and she attended a hearing before the Adjudicator on 25 October 2016.

8.By Decision dated 14 July 2017 and another Decision dated 9 August 2018, collectively (“the Board’s Decisions”), the Board rejected her appeal and confirmed the Director’s Decisions.

9.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decisions, came to its conclusion refusing her appeal and confirmed the Director’s Decisions for the reasons below.

a. This was a purely domestic dispute which happened several years ago. There is no suggestion of any state actor being involved. There is no suggestion that the dispute concerns any Convention reason [37(A)(b)].

b. The applicant would not face a genuine and substantial risk of being subjected to severe ill-treatment [37(B)(c)]

c. Internal relocation is an option open to her. [50]

Application for leave to apply for Judicial Review

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

11.In her affirmation in support of her application, she simply repeated that if she returned to Indonesia, she would be harmed or killed by her ex-boyfriend.

DISCUSSION

The Board’s Decisions

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

13.The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

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

Dated the 11^th day of December 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 11/12/2019 Sutimah 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 11/12/2019 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 1859/15/7/43/I130 BOR 1071/17/11/27/I84 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 369/15 & RBCZ 9001984/17(formerly RBCL 3000133/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)