Case Document

100%Judiciary

HCAL 2914/2018

[2020] HKCFI 1797

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2914 of 2018

BETWEEN

	Yunanik	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.This is the applicant’s application for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration (“the Director”) as interested party.

The applicant

2.The applicant is a national of Indonesia. She came to Hong Kong on 4 September 2014 as a domestic helper and was permitted to stay until 18 July 2016 or two weeks after termination of her contract, whichever is earlier. Her contract was prematurely terminated on 11 December 2014. She overstayed without permission. On 15 March 2016, she surrendered to the Immigration Department. On 28 June 2016, she submitted a written signification in seeking non-refoulement protection.

3.In support of her claim, she claimed that if refouled, she would be harmed or killed by her stepfather and his creditor because her stepfather had borrowed money from the money-lender and was unable to reply the loan. Her mother told her that the step‑father had used her house as security for the loan. But the security was insufficient to cover the loan and she had to repay the loan for her step-father. Her mother also told her that her step-father and the creditor said that she had not remitted sufficient money to repay the loan and if she returned to Indonesia, they would kill her. They have been asking for information of her whereabouts. She therefore sought non-refoulement protection.

The Director’s Decision

4.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”).

5.By Notice of Decision dated 28 March 2018, the Director refused her claim for the reason that her claim was not substantiated.

The Board

6.The applicant appealed to the Board and she attended a hearing before the Adjudicator on 22 August 2018.

7.By Decision dated 7 December 2018 (“the Board’s Decision”), the Board rejected her appeal and confirmed the Director’s Decision.

8.The Board considered the evidence and found at paragraph 38 that it did not accepted that the applicant was telling the truth regarding the so-called threat. Her evidence was both vague and unbelievable in both oral evidence and her written case. It accepted that her step-father might have borrowed money from the creditor and her mother and step‑father might have asked her for money. But it did not accept that they threatened to kill her. It said: “All the other claims and the alleged threats from the creditor and the step‑father are not accepted.”

9.The Board came to the above conclusion having considered the factors below.

a. She gave evasive answers to simple and straightforward questions and evidence was vague, with inconsistencies and contradictions between her evidence at the hearing and her evidence in the hearing bundle. [31]

b. She admitted that at the time of her application, there was no imminent threats of risk of harm. [31(e)]

c. She admitted that the purpose of seeking protection is to keep extending her stay in Hong Kong because she could not get a high pay job in Indonesia. She simply did not like returning to Indonesia. [31(g)]

d. The number and nature of the inconsistencies are sufficiently serious as to undermine the reliability of her evidence. [34]

10.In her Form 86, the applicant applied for leave to apply for judicial review of the Board’s Decision.

11.The applicant relied upon a 15-page copybook of other similar cases with stultifying and discursive submissions of fact, irrelevant materials and grounds of misdirection in the law, procedural impropriety or unfairness and irrationality. I shall summarize those grounds as follows:

1. the hearing bundle was given to her shortly before the appeal hearing and she did not have sufficient time to prepare her case;

2. the contents of the hearing bundle were in English and she was unable to obtain interpreter service;

3. she was confused at the appeal hearing;

4. the Adjudicator was unfair and had not given greater care to a self‑represented claimant;

5. the Adjudicator had misdirected herself by considering that the applicant had to experience torture in the past in order to establish substantial grounds to believe that there was a real risk of torture in future and had applied the wrong standard of proof;

6. the Adjudicator had applied the incorrect standard of proof;

7. the Adjudicator had not done sufficient research in the Country of Origin Information (“COI”) and her knowledge was not updated;

8. the Adjudicator had relied upon hearsay information and outdated material in relation to COI;

9. the Adjudicator had cherry-picked and given undue weight on the irrelevant material, neglecting the materials favourable to his case;

10. the Adjudicator had not considered USHR 2010, USRF 2010 and The International Commission of Jurists (ICJ) “Report on the ICJ Mission to Indonesia” Autumn 2011, which is favourable to her case;

11. the Adjudicator failed to fulfil her obligation to obtain the requisite documents for her adjudication;

12. there was no screening for BOR 2 risk; and

13. the applicant was not legally represented or assisted before the Board.

DISCUSSION

The Board’s Decision

12.The applicant appeared before me. She confirmed that she had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. She also confirmed that she understood the Director’s Decision as her lawyer had explained it to her. Her friend had explained to her the hearing bundle and the Board’s Decision.

13.I explained the Board’s findings above to her and asked if she had any comments. She said that she had no comments on them.

14.It is quite obvious that, apart from some fundamental facts such as her nationality, the Board did not accept the facts as stated by the applicant in support of her claim. Therefore, the applicant had no factual basis for her claim. Those grounds above are quite irrelevant.

15.The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 held that the applicant does not have an absolute right to free legal representation at all stages of the proceedings. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration.

16.Grounds (1) to (4) and (12) are simply not true.

17.Grounds (5) to (11) are her opinions without any evidence in support of them. They fail.

18.Ground (13) fails in light of the Court of Appeal decision above.

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

CONCLUSION

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

Dated the 30^th day of July 2020

	(Henry Ng)
	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 30/7/2020 Yunanik 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 30/7/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 11104/18/4/114/I1251 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 409/18(Formerly RBCZ 12380/16) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)