Case Document

100%Judiciary

HCAL 1891/2018

[2020] HKCFI 1845

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1891 of 2018

BETWEEN

	Rohimah	1^st Applicant
	Rohimah Zeina Az Zahra	2^nd 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 the Applicants being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicants:

THE APPLICATION

1.The applicants are mother and daughter and they apply for leave to apply for judicial review of the Decision dated 14 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The daughter is added as the second applicant as she was not a party in Form 86. The daughter’s case depends on the mother’s facts. The facts below, unless otherwise stated, refer to the mother’s case only.

2.The applicants did not appear on the scheduled date of hearing on 9 July 2020. Their joint application will be assessed on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by adding the Board as the proposed respondent and by deleting the Board and replacing it with the Director of Immigration (“the Director”) as interested party.

The applicants

4.The first applicant is an Indonesian national and the second applicant is her daughter. The first applicant came to Hong Kong on 9 January 2015 as a domestic helper and was allowed to stay in Hong Kong until 9 January 2017 or earlier termination of her contract. Her contract was pre-maturely terminated, but she did not depart. On 16 December 2015, she surrendered to the Immigration Department and lodged her non-refoulement claim by a written signification dated 18 April 2016. On 7 May 2016, she gave birth to her daughter, the second applicant. By a written signification dated 26 July 2016, she lodged a non-refoulement claim on behalf of the second applicant.

5.In support of her claim, she said that if refouled, she feared that she and her daughter would be harmed or killed by her parents and her husband as they noticed that she got pregnant in Hong Kong and also her loan-shark creditor and his men because she failed to reply the debt.

6.The applicant claimed that she married her husband in 2014. She set up a convenience store and her husband assisted her to run it. She borrowed 50 million Indonesian Rupiah from a loan-shark. Her business ran down and was closed in August 2014. She was unable to pay the debt. She had to come to Hong Kong to work as a domestic helper to repay the debt to the loan-shark. The loan-shark and his men had gone to her house demanding repayment of the debt. They allowed more time for her to repay the debt and left without harming anybody. In May 2015, she met a man in Hong Kong. She found herself pregnant later. The man then left her. She told her parents about her pregnancy. They said that they would disown her. She also told her husband. He was shocked and asked her to abort the pregnancy or he would kill her. She had not talked to her parents and her husband since then. She thought that her life and her child’s life would be in danger if she returned to Indonesia.

The Director’s Decision

7.The Director considered her application in relation to the following risks:

a. risk of torture under Part VII C 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”).

8.By Notice of Decision dated 21 November 2016 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated. The Director found that the level of risk of her and her daughter being harmed by her parents, her husband or the creditor was low [17]; state protection was available to her [20]; internal relocation was an option open to her [28] and the applicant failed to establish her claim under BOR 2 risk.

The Board’s Decision

9.The applicants appealed to the Board against the Director’s Decision and attended the hearing on 26 February 2018.

10.By the Board’s Decision, the Board rejected their appeal and confirmed the Director’s Decision.

11.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusion below.

(1) “…I do not accept that the Appellant’s claim to fear violence from her husband should she return to Indonesia is genuine or credible…[44]”

(2) Even if her fears were true “ …I am satisfied that it would not be unreasonable to expect her to relocate to an area of Indonesia where they would not threaten her. I do not accept that her claim that they would find her wherever she went is credible [47].”

(3) “…I do not find the Appellant’s claim to fear the loan shark Mr. Tayot to be credible…[49]”

(4) “… I am not satisfied that the Appellant has established that there are substantial grounds which support the conclusion that she will face a real risk of ill-treatment as claimed if she returned to Indonesia [50].”

Application for leave to apply for judicial review

12.The applicants filed Form 86 on 10 September 2018 for leave to apply for judicial review of the Board’s Decision.

13.In her affirmation in support of her application, she did not set out any ground in support of her application. Nor did she say that the Board was in error in coming to its decision.

DISCUSSION

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

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 Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.The applicants fail to show that they have any reasonable prospect of success in their proposed judicial review.

CONCLUSION

18.Since the applicants’ joint application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to grant them leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.

Dated the 4^th day of August 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 Applicants on 4/8/2020 Rohimah; Rohimah Zeina Az Zahra Applicants’ 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 4/8/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 5366/16/12/13/I525; USM 5367/16/12/14/I526 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2360/16 (Formerly RBCZ 11535/16); QA T/C 2361/16 (Formerly RBCZ 12770/16) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

Cites 1 case

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