Case Document

100%Judiciary

HCAL 2436/2018

[2020] HKCFI 1728

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2436 of 2018

BETWEEN

	Rufina Maria	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.The application applies for leave to apply for judicial review of the Decision dated 5 October 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 (“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 2 October 2019.

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

The applicant

4.The applicant is a national of Indonesia. She came to Hong Kong first as a domestic helper and then after her employment was prematurely terminated, as a visitor where she was permitted to stay until 25 January 2017. She overstayed. She surrendered herself to the Immigration Department on 26 January 2017. She lodged a non‑refoulement claim by written representations dated 10 and 20 February 2017 respectively.

5.In support of her claim, she said that if refouled, she feared that she would be harmed by her creditor, the loan shark, Mr. Augus Wahyudi. She borrowed HK$10,000 from the Augus for the purpose of coming to Hong Kong to pursue compensation from her former employer for termination of her contract without prior notice. She was unable to find her former employer in Hong Kong. She was unable to repay the money to Augus, who had demand payment and threatened to kill her if she did not pay. She was afraid that Augus might mean what he said should she return to Indonesia. That is the only reason that she did not return to Indonesia.

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 9 March 2018 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated.

The Board’s Decisions

8.The applicant appealed to the Board against the Director’s Decision and she attended a hearing before the Adjudicator on 3 July 2018.

9.By 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 conclusion that she was not a witness of truth and that she finally admitted that all along she was trying by whatever means to extend her stay in Hong Kong [39]. The Board also found she was evasive in give her explanations to questions raised by it and she gave inconsistent evidence [31]. See paragraphs 30 to 34 of the Board’s Decision. Also, the Board found that relocation was an option open to her [37 & 59-61].

Application for leave to apply for judicial review

11.The applicant filed Form 86 dated 1 November 2018 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, she said that she was still afraid that the loan shark would kill her if she returned to Indonesia and she wanted to stay in Hong Kong. She had not pointed out any errors committed by the Adjudicator in coming to her decision.

DISCUSSION

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

14.She said that she did not understand the Board’s Decision. I therefore explained the Board’s findings in paragraph 10 above to her and asked her if she had any comments on them. She said that she had no comments.

15.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.”

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 28th 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 28/7/2020 Rufina Maria 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 28/7/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 10871/18/3/323/I1201 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 115/18(formerly RBCZ/10609/17) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)