Farida Dharma Wanti v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1813/2018

[2020] HKCFI 1461

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1813 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:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 30 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.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 there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 10 December 2019.

3.Leave was granted to the applicant to amend Form 86 by deleting the Board as interested party.

The applicant

4.The applicant is an Indonesian national. She came to Hong Kong on 27 January 2015 as a visitor and was permitted to stay until 26 February 2015. She overstayed and on 14 October 2015, she surrendered herself to the Immigration Department. She lodged her non-refoulement claim on 25 January 2016.

5.In support of her claim, she said that if refouled, she feared that she would be harmed or killed by her husband because she had a boyfriend in Hong Kong. She also feared to be harmed by her husband’s debt collectors as she was unable to repay the loan for her husband.

6.The applicant claimed that she married her husband in February 2005. Her husband was a grocery shop keeper. On two occasions in April and July in 2005, her husband was drunk. He slapped her face and locked her up for one day before he released her. He said that he wanted to marry another woman. She went to Hong Kong to work as a domestic helper in 2006. In 2008, her parents told her that a creditor had called for her. He demanded payment of debt borrowed by her husband in her name. She asked her husband about that. He said that he did not borrow money in her name. In 2011 whilst she was working in Hong Kong, she had a boyfriend. They broke up in 2012. However, her husband knew about that and he threatened to kill her for her unfaithfulness. She did not want to go back to Indonesia for fear of her husband and the creditor.

The Director’s Decision

7.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”).

8.By Notice of Decision dated 30 December 2016 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated.  The Director found that there was no substantial ground for believing that there would be any real and substantial risk of her being harmed by her husband and the creditor [13]; state protection was available to her [17]; internal relocation was an option open to her [21] and the applicant failed to establish her claim under BOR 2 risk.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision and attended the hearing on 20 June 2018.

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

11.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusion that it did not accept that she was married to her husband and that she was threatened by the loan-shark for the money borrowed by her husband or that she had real risk of the harms she claimed [50-51]. For reasons, see paragraphs 41-50.

Application for leave to apply for judicial review

12.The applicant filed Form 86 dated 3 September 2018 for leave to apply for judicial review of the Board’s Decision.

13.In her affirmations 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.The applicant appeared before me. She said that she was treated fairly by the immigration officer and the Adjudicator of the Board. Her lawyer had explained the Director’s Decision to her and her friend explained to her the Board’s Decision.

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

16.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.”

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 9^th day of July 2020

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