Nurkhasanah v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office and Another

HCAL 2409/2018

[2020] HKCFI 1659

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2409 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.This is the applicant’s application for leave to apply for judicial review against the respective decisions of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.The applicant is a national of Indonesia. On 29 October 2016, she came to Hong Kong as a domestic helper. Her employment contract terminated on 16 April 2017. Since then, she overstayed. On 8 May 2017, she surrendered to the Immigration Department. On 11 October 2017, she was charged and convicted of possession of forged identity card and was sentenced to 12 months’ imprisonment on 14 October 2017. On 27 January 2018, by written representation, she raised a non-refoulement claim.

3.She claimed that if refouled, her life would be in danger because of her husband, who had defaulted on loan repayment to the creditor and her husband might impose ill‑treatment or even kill her to vent his anger.

4.She and her husband had a daughter. Her husband had borrowed loans from a creditor. He demanded her to pay him money to facilitate the loans. She came to Hong Kong to work as domestic helper, remitting him money from time to time. He asked for more money. He threatened that he would torture her to death or sell her as a prostitute. He also harassed her family. In the past, he had slapped her. She proposed to divorce him. But he refused. Then she stopped contacting with her husband. She had returned to Indonesia before and lived in her parents’ and her friend’s house. Nothing happened. She also said that she was a lesbian and she would be subjected to discrimination in Indonesia. She heard from others that lesbians would be treated as a disgrace and be expelled from her village, in which case, she would have nowhere to go upon return to Indonesia.

The Director’s Decision

5.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 under RC”).

6.By Notice of Decision dated 30 May 2018 (“the Director’s Decision”), the Director rejected her claim for the reason that her claim was not substantiated.

The Board’s Decision

7.The applicant appealed to the Board and she attended the hearing on 23 August 2018.

8.By Decision dated 10 September 2018 (“the Board’s Decision”), the Board refused her appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s evidence and found that her application was a frivolous application without merits on the reasons below [27]:

a.she had never been ill-treated by her husband; the only incident was he had slapped her with bare hands;

b.she had never met the creditor;

c.she returned to Indonesia and lived in her parents’ home where her husband was unable to locate her;

d.she and her family had no idea her husband’s whereabouts and there was unlikely that there was any threat from her husband;

e.that she was a lesbian was just a bare allegation; and

f.  she had committed an offence of possessing a forged identity card, which showed that her intention was to find work in Hong Kong.

10.The Board also found that state protection was available to her [32]. Also, the option of internal relocation was open to her [50-53].

Application for leave to apply for judicial review

11.In her Form 86 under Order 53, rule 3 of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Director’s Decision and the Board’s Decision respectively.

12.In her affirmation in support of her application, she did not state any ground.

DISCUSSION

The Director’s Decision

13.The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

14.The applicant’s application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. I dismiss her application.

The Board’s Decision

15.The applicant appeared before me. She confirmed that she was free to state her case before the immigration officer and the Adjudicator. Her lawyer had explained the Director’s Decision to her. Her friend explained the Board’s Decision to her.

16.I put the Board’s findings to her for her comments. She said that she had no comments.

17.It is obvious that the Board rejected her evidence in support of her claim.

18.The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.

CONCLUSION

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

Dated the 27^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