Case Document

100%Judiciary

HCAL1634/2018

[2020] HKCFI 250

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1634 of 2018

BETWEEN

	Poinem	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent

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.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 (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to her. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 31 July 2019.

The applicant

2.The applicant is a national of Indonesia. She came to Hong Kong in June 2003 as a domestic helper until August 2015 when her employment contract was terminated. She overstayed and was arrested by police on 15 September 2015. On 25 September 2015, she lodged a non-refoulement claim.

3.In support of her claim, she said that her husband in Indonesia had borrowed loans from the loan sharks. He demanded her repay the debts. She refused. However, she remitted money from Hong Kong to Indonesia. Her husband threatened to kill their daughters if she refused to repay the debt for him. She proposed to divorce him and she had sign the paper. He refused to sign the paper. From 2009 to 2015 she returned to Indonesia, she was assaulted by him three times. He could locate her even she moved to other places. He also threatened to kill her. He had already sold her house in Indonesia. She could not relocate herself because she had no friends or relatives to support her. That is why after her employment contract was terminated, she did not return to Indonesia.

The Director’s Decision

4.The Director first 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”).

5.By Notice of Decision dated 17 August 2017 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated.

The Board’s Decision

6.The applicant appealed to the Board against the Director’s Decision and she attended a hearing before the Adjudicator on 24 April 2018.

7.By Decision dated 3 August 2018 (“the Board’s Decision”), the Board rejected her appeal and confirmed the Director’s Decision.

8.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision [23-35], came to the conclusion below:

a. There were inconsistencies and implausibility in her evidence and her explanation was not persuasive. She was not a credible witness [36].

b. The Board only accepted the fact that she was married to her husband in Indonesia and they had children there. Their relationship was disharmonious. The Board rejected the events in support of her claim [37].

c. The Board found that the applicant did not face a real risk of proscribed harm if she was refouled to Indonesia [38 & 39].

Application for leave to apply for judicial review

9.The applicant filed Form 86 for leave to apply for judicial review of the Board’s Decision.

10.In her affidavit, she simply repeated that she would be in danger if she returned to Indonesia as her ex-husband would harm her and that he had been asking her to remit money to him.

DISCUSSION

11.The applicant appeared before me. She said that she had no complaint against either the Immigration officer or the Adjudicator of the Board. She further said that the Board’s Decision was correct. She made this application simply to ask this Court to extend her stay in Hong Kong. I explained to her that this Court has no power to extend her stay. This is the power of the Director.

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

CONCLUSION

13.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 23^rd day of January 2020

	(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 23/1/2020 Poinem 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 23/1/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 8295/17/8/333/I809 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)