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

HCAL 2543/2018

[2020] HKCFI 1736

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2543 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 8 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant was absent on the hearing day of her application on 18 October 2019. In Re Abdus Salam [2019] HKCA 1091 at §22, the Court of Appeal held that her application should be considered on its merits.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, the Court, on its own motion, amended Form 86 by deleting “USM” in the column for respondent and replaced it with the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and by replacing the Board in the column for interested party with the Director of Immigration (“the Director”).

The applicant

4.The applicant is a national of Indonesia. She came to Hong Kong on 20 October 2013 as a domestic helper. Her contracted was terminated on 29 January 2014. She overstayed since 13 February 2014. On 1 February 2015. She was arrested by police for overstaying and was convicted and sentenced to 4 weeks’ imprisonment, suspended for 3 years. On 9 February 2015, she lodged a non-refoulement claim.

5.She claimed that if refouled, she would be harmed, killed or forced to marry Mr. Pono’s son by Mr. Pono and her father. Mr. Pono was a loan shark. The relevant events leading her to leave her country are set out below.

a.Her father was a gambler and he borrowed money from Pono, a loan shark with influence in the area. His son is called Reza.

b.Her father told her that he was unable to pay the debt. Pono proposed to him that if she married Reza, he did not have to repay the debt to Pono. She did not like Reza and refused. They had quarrels over this matter from time to time in the family. Her father threatened to kill her. He also slapped her and she fainted. She moved to live in some other places when her father forced her to marry Reza.

c.In June 2010, she decided to leave Indonesia. She obtained training from an agency and she came to Hong Kong as a domestic helper.

d.She learned from neighbour that Pono and her father were still looking for her in 2012.

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 20 March 2018 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated.  There was no likelihood that the risk of harm from her father and Pono as she perceived was real and foreseeable [12 & 13]; state protection was available [14] and internal relocation was open to her [15].

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 24 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 it did not accept the stories above. See paragraphs 81 and 82 of the Board’s Decision.

Application for leave to apply for judicial review

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

12.She did not set out any grounds in support of her application.

DISCUSSION

13.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.”

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

CONCLUSION

15.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 29^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