Della Olly Fatma Noerlita v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1880/2018

[2020] HKCFI 1549

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1880 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 19 July 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 did not attend the hearing scheduled on 7 January 2020. I shall proceed to consider 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 the Director of Immigration (“the Director”) as respondent and by adding the Director as interested party.

The applicant

4.The applicant is an Indonesian national. She came to Hong Kong in 2014 as a domestic helper. However, she had committed offences and her employment contract was terminated on 25 October 2017. She was allowed to stay on an extended basis until 12 December 2017. She was convicted of the offences and sentenced to four months’ imprisonment and was discharged on 1 March 2018. Whilst being detained in prison, she lodged her non-refoulement claim by way of written significations.

5.In support of her claim, she said that if refouled, she would be harmed or killed by a loan shark called Mr. Joseph due to her failure to repay her loan.

6.She signed a loan agreement for 50 million Indonesian Rupees with Joseph for her father’s re-marriage expenses. Her father was unable to repay the loan to Joseph. Joseph came to her house and threatened that he would kill her father and her if the loan was not paid. She came to Hong Kong and worked as a domestic helper. She remitted HK$1500 per month to Joseph. She did not know when the loan would be settled. But Joseph called her to repaid the money from time to time. He also said that if she could not pay off the debt, she had to marry him. She refused to marry him as he is a Christian and she, a Muslim. She dared not return to Indonesia as Joseph was looking for her.

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 11 April 2018 (“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 Joseph [10]; state protection was available to her [13]; internal relocation was an option open to her [15] 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 28 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 of inconsistencies and implausibility in her evidence as set out in the Board’s Decision, came to the conclusion that it did not accept her evidence as credible and reliable. It found that she had failed to prove the primary facts of her claim and it did not accept that there was a loan made under her name and it did not accept that there were threats issued to her [16]. It went further that even if her stories were true, state protection would be available to her [18] and internal relocation would be an option open to her [48]. She failed to establish BOR 2 risk.

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 10 September 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.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.”

15.There is nothing to show that the Board had committed any error in its application of the law to her case or in coming to its conclusions on the facts of the case.

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

CONCLUSION

17.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 15^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