Case Document

100%Judiciary

HCAL 1918/2018

[2020] HKCFI 1552

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1918 of 2018

BETWEEN

	Mariana	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.By an Order of this Court on 29 August 2019, the applicant’s application for leave to apply for judicial review was dismissed for want of prosecution. The applicant had taken out a summons supported by her affirmation for setting aside the ex parte Order. She gave the reason for her absence that she did not receive the court’s Notice of Hearing. However, she was unable to explain why she did not receive the said Notice.

2.The Court of Appeal in Re Abdus Salam [2019] HKCA 1091 at §22 held that the appropriate procedure for the above situation would be either adjourn the hearing or to determine the merits of the case on paper. I therefore set aside the ex parte Order and proceeded to hear her application upon her confirmation that she was ready for the hearing.

3.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”).

4.Leave was granted to the applicant to amend Form 86 by deleting the Director of Immigration (“the Director”) as the respondent and by adding the Director as interested party.

The applicant

5.The applicant is an Indonesian national. She came to Hong Kong on 23 January 2015 as a visitor and was permitted to stay until 22 February 2015. She overstayed and on 6 August 2015 was arrested by police and referred to the Immigration Department. She lodged her non-refoulement claim on 11 August 2015.

6.In support of her claim, she said that if refouled, she feared that she would be harmed or killed by her step-father named Budi.

7.Since 2006, the applicant worked as domestic helper in Singapore and Hong Kong. In 2014, she returned to Indonesia and found Budi at home. She then learned that he was her step-father. Budi attempted to raped her whilst her mother was not home. She managed to resist him and run to her friend’s home. Budi demanded her to pay him money or he would abuse her mother. She had paid him 5 million Indonesian rupiahs. In April 2014, she left Indonesia for Hong Kong.

The Director’s Decision

8.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”).

9.By Notice of Decision dated 15 June 2017 (“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 risk of her being harmed by Budi upon her return to Indonesia [10]; state protection was available to her [17]; internal relocation was an option open to her [21] and that her BOR 2 risk was not established.

The Board’s Decision

10.The applicant appealed to the Board against the Director’s Decision and attended the hearing on 31 July 2018. She was legally represented by her duty lawyer. The Director was represented by a government counsel.

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

12.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 her step-father had harassed her on one occasion, but that it considered that it was a one-off opportunistic incident, albeit completely unacceptable, and there was no evidence that he would harm the applicant in any way and even if he did, she could reasonably relocate to Surabaya; such a relocation would not be unduly harsh [6, 41 & 49]. The Board further found that there was no evidence to show that there was a consistent pattern of gross, flagrant or mass violations of human rights in Indonesia for the purposes of section 37ZI(5) of the Ordinance [41].

Application for leave to apply for judicial review

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

14.The applicant relied upon the grounds attached to Form 86 as set out below.

1.The Board had not paid attention to the fact corruption and incompetency of the Indonesian Police are still extremely serious. The document entitled “Indonesia Corruption Report” published by GAN Integrity in June 2017 pointed out that “The Indonesian police are plagued by corruption, and bribery is widespread, presenting companies with high risks: ‘one in four Indonesians report having paid a bribe to the police services in the past 12 months.’ ”

2.The news titled “Are Indonesian women’s rights under threat” published by ASEAN Today on 30 October 2017 suggested that the women’s rights in Indonesia are still under serious threat.

3.The approach of the Director and the Board was that what protection the state would be able to the applicant rather than what it is in fact providing to the applicant; such approach is inconsistent with high standards of fairness as the authority decided that the Board should adopt.

4.The Adjudicator erred in concluding that the applicant did not face a real chance of harm now and in the foreseeable future in Indonesia.

DISCUSSION

15.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. She was legally represented at the Board.

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.Ground (1) and Ground (2) can be considered together. It is obvious that the Director had considered the country of origin information (“COI”) in relation to her concern that she did not believe the police could or would have offered her any help even if she had reported her problem to the police because they were corrupt and they were always on the side of the rich [see paragraph 15 of the Director’s Decision]. The Director had considered the COI materials which corroborated the applicant’s assertions and other COI which held contrary views. See paragraphs 16 and 17 of the Director’s Decision. Having considered both sides of the coin, the Director came to his conclusion that reasonable state protection would be available to her if resorted to [19]. The Director was entitled to form his own views. The applicant is unable to show the error the Director had committed in coming to his conclusion. She was legally represented before the Board and her lawyer would have pursued this issue before the Board. These two grounds would not assist her.

18.The Director concluded that reasonable protection would be available to her if resorted to, it is just natural for the Director to enquire if she had explored this protection in Indonesia. If she had not done so, it is simply not reasonable to say that her country did not provide state protection to her. High standards of fairness does not require the Director or the Board to ensure state protection was in fact providing to her. The applicant elected not to seek state protection, that is her freedom to do so. It does not then lie in her mouth to say that the state was not providing protection to her. Ground (3) fails.

19.Ground (4) is her opinion without any evidence or particulars in support of it.

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

CONCLUSION

21.Since the applicant’s application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to grand 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

	(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 15/7/2020 Mariana 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 15/7/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 7572/17/6/268/I740 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 890/17(formerly RBCZ 12795/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)