Case Document

100%Judiciary

HCAL 2968/2018

[2020] HKCFI 1203

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2968 of 2018

BETWEEN

	Rias Tuti Wagiran	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.The applicant applies for leave to apply for judicial review of the Decision dated 10 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. The Court will deal with her application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by deleting “USM” and replacing it with the Board as proposed respondent and by deleting the Board and replacing it with the Director of Immigration (“the Director”) as interesting party.

The applicant

4.The applicant is an Indonesian national. She came to Hong Kong on 4 January 2011 as a domestic helper and was allowed to stay as such. Her employment contract was terminated prematurely on 24 May 2011. She misrepresented to the Immigration Department that she was still employed. She was therefore allowed to stay until 25 August 2011. On 20 July 2011, she was arrested by police for misrepresentation to the Director and for overstaying. She was convicted of the offences and was sentenced to six months’ imprisonment. She made a torture claim to the Director, but her application was rejected on 14 March 2012. She lodged her non-refoulement claim in May 2013.

5.In support of her claim, she said that if refouled, she feared that she would be harmed or killed by the loan shark in Indonesia and her parents also forced her to marry this man. The loan shark had attempted to rape her in 2003. He was unsuccessful. He said that he wanted to marry her and if she refused him, he would kill her. She went to Singapore to work as a domestic helper. In 2007, she returned to Indonesia but she did not see her parents or the loan shark. Then she went to Hong Kong to work as a domestic helper in May 2007. She had no contact with her parents or the loan shark since then.

The Director’s Decision

6.The Director considered her application in relation to the following risks:

a. 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”);

b. 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

c. 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”).

7.By Notice of Decision dated 27 April 2018 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated. The Director found that the risk of her being harmed if she returned to Indonesia was low [16]; state protection was available to her [18]; internal relocation was an option open to her [20] and the applicant failed to establish her claim under BOR 2 risk.

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision and attended the hearing on 1 August 2018.

9.By the Board’s Decision, the Board rejected her appeal and confirmed the Director’s Decision.

10.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusion that it accepted that she was sexually molested by the loan shark and her parents would want her to marry the loan shark [29]. The Board also accepted that she had no contact with her parents since she left home in 2003.

11.On the basis of the evidence, the Board did not accept that she would face a real BOR 3 risk [40]; that relocation was an option open to her [42]; and that her claim under Persecution risk failed too. She was unable to establish BOR 2 risk.

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 24 December 2018 for leave to apply for judicial review of the Board’s Decision.

13.In her affirmation in support of her application, she did not set out any ground in support of her application. Nor did she say that the Board was in error in coming to its decision.

DISCUSSION

14.As the Board did not accept that she was under any real risk if she returned to Indonesia, her claim will fail.

15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.There is nothing to show that the Board had committed any error in its application of the law to her case.

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

CONCLUSION

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

Dated the 16^th day of June 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 16/6/2020 Rias Tuti Wagiran 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 16/6/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 11550/18/5/135/I1322 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 965/18(formerly RBCZ 2000475/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

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