Betty v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 2410/2018

[2020] HKCFI 1657

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2410 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 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 (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to her. 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 3 September 2019.

2.Leave was granted to the applicant to amend Form 86 to delete the Director of Immigration as the respondent.

The applicant

3.The applicant is a national of Indonesia. She came to Hong Kong in 2008 to work as a domestic helper. On 2 May 2016, she was arrested for theft and her contract was prematurely terminated. Her permission to stay was extended to 7 June 2016, but she had not left Hong Kong or applied for an extension of stay since. She was convicted of theft and was sentenced to two months’ imprisonment.

4.She claimed that if refouled, she would be harmed or killed by her creditors and her husband.

5.Between 2002 and 2004, she borrowed money from the creditor to pay the employment agent fees for her employment in Singapore. She worked in Singapore for one year. She remitted money to her husband to pay the creditor. She returned to Indonesia in 2004. Her creditors came for repayment and she had not been able to pay. She realized that her husband did not pay the creditor with the money she remitted to him. Instead, he borrowed money from other creditors. He told her that one of the conditions for the loans was that he had to convert to Catholicism. He also forced her to convert to Catholicism too. One night in August 2007, he forced her to do so by burning her face with a gasoline lamp. She could not stand such violence and she left him in October 2007. She came to Hong Kong to work as a domestic helper in January 2008.

The Director’s Decision

6.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”).

7.By Notice of Decision dated 25 September 2017 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated.

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision and she attended a hearing before the Adjudicator on 21 June 2018.

9.By Decision dated 18 October 2018 (“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 conclusions below.

a.The applicant was an evasive and unconvincing witness and no reliance could be placed on her claim that she was at risk of harm from her husband or from creditors if she returned to Indonesia [60].

b.There was no credible evidence before the Board of the existence of a loan to the creditors and in the absence of a loan, the applicant was at no risk of harm from the creditors [63].

c.There would be no risk that her husband would harm her if she returned to live in Indonesia and since he divorced her, there would be no reason for him to force her to convert to Catholicism [69].

d.Internal relocation was an option to her [70 & 78].

Application for leave to apply for judicial review

11.The applicant filed Form 86 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation, she did not set out any reasons in support of her application.

DISCUSSION

13.The applicant appeared before me. She said that she was free to state her case before the Adjudicator at the Appeal Board hearing.

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

15.The Court of Appeal in Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 held that the immigration officer and the Adjudicator are the facts finders. There is nothing to show that this Court should intervene with their decisions.

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 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