Sri Atini v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 2241/2018 on BabelCite. This High Court CFI judgment was delivered on 3 May 2022.
1. The applicant applies for leave to apply for judicial review of the letter dated 12 September 2018, referring to it as the immigration officer’s Notice of Decision. In fact, the letter dated 12 September 2018 is the covering letter for the hearing bundle containing the Director’s Decision dated 28 August 2018 (the “Director’s Decision”).
Cites 3 cases
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HCAL 2241/2018 [2022] HKCFI 1178 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2241 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:
Observations for the Applicant: THE APPLICATION 1.The applicant applies for leave to apply for judicial review of the letter dated 12 September 2018, referring to it as the immigration officer’s Notice of Decision. In fact, the letter dated 12 September 2018 is the covering letter for the hearing bundle containing the Director’s Decision dated 28 August 2018 (the “Director’s Decision”). 2.Since she had appealed the Director’s Decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”), absent any exceptional circumstances, she cannot take out this application for the Director’s Decision[1]. Her application should refer to the Board’s Decision dated 9 April 2019 (“the Board’s Decision”). 3.There is another procedural irregularity. The date of this application by way of Form 86 is 15 October 2018, which predates the Board’s Decision. In theory, this application is a nullity as it cannot be made before the Board’s Decision. However, it is apparent that the applicant intends to take out the application against the Director’s Decision under appeal to the Board. Now the Board has delivered it decision dismissing her appeal, the applicant clearly intends to ask for leave to apply for judicial review of the Board’s Decision. This can be done by amending the date of Form 86 to a date after the date of the Board’s Decision. 4.By virtue of Order 2 of the Rules of the High Court (“RHC”), the applicant’s failure to amend Form 86 to amend the date of Form 86 is treated as an irregularity and will not nullify this proceeding. It will be amended upon the Court’s own motion below. 5.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that (1) the date of Form 86 is 16 April 2018; (2) the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party and (3) the decision in respect of which relief is sought is the Board’s Decision. 6.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the RHC, the Court will deal with her application on paper. The applicant 7.The applicant is a national of Indonesia. She entered Hong Kong on 13 November 2013 as a foreign domestic helper. When her employment contract ended on 13 November 2015, she did not depart and had overstayed since 14 November 2015. On 14 May 2016, she was arrested by the police for overstaying. On 30 May, 31 May, 7 June and 17 June 2016 respectively, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by the loan shark. 8.According to the applicant, she was informed by her father in 2014 that he owed a large sum of debt to the loan shark. However, her father passed away in 2015, leaving the repayment responsibility to the applicant. The loan shark started to threaten the applicant for the repayment and forced her to marry his son if she was unable to repay. In early 2016, the applicant negotiated with the loan shark for setting off the debt with a plot of land. The proposal was rejected as it was not sufficient to cover the debt. The loan shark also threatened her mother for her whereabouts and even hit her sister with a car as a threat. Out of fear, she stayed in Hong Kong for protection. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 28 August 2018 by the Director (the “Director’s Decision”) and paragraph 29 of the Board’s Decision as described below. The Director’s Decision 9.The Director considered the applicant’s claim in relation to the following risks:
10.By way of the Director’s Decision, the Director refused the applicant’s claim. The Director found that the level of risk of the applicant being harmed or killed upon refoulement was assessed to be low because (i) the low frequency and intensity of past ill-treatments indicated an unlikelihood of future risk of harm [13]-[15]; (ii) state protection would be available to her [16]-[22], and (iii) internal relocation was an option open to her [23]-[28]. The Board’s Decision 11.The applicant appealed the Director’s Decision to the Board. On 4 March 2019, the Board conducted an oral hearing for her appeal, during which the applicant was assisted with an interpreter [8]. In the applicant’s notice of appeal/petition, she stated that a woman was killed by a loan shark in her home country [40]. 12.The Board explored the material aspects of the applicant’s claim and sought clarifications from her [41]-[59]. Having considered all the evidence, the Board found that there were significant inconsistences in the applicant’s evidence. In particular, the applicant was inconsistent in the following aspects: (i) the borrower of the debt; (ii) the sum of the debt; (iii) the time when she first talked to the loan shark; and (iv) the time when she last communicated with the loan shark [63]. Viewing these inconsistencies accumulatively and, without any cogent explanations, the Board refused to accept the applicant’s claimed fear of harm from the loan shark. 13.Thus, the Board rejected the applicant’s claim and dismissed her appeal. Application for leave to apply for judicial review of the Board’s Decision 14.The applicant has filed Form 86 dated 15 October 2018 for leave to apply for judicial review of the Board’s Decision. 15.In her affirmation in support of her application, she enclosed the Director’s Decision, without stating any specific ground in support of her application. DISCUSSION 16.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1). 17.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. 18.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
19.There is no valid reason from the applicant to challenge the Board’s Decision. 20.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. 21.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review. CONCLUSION 22.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application. Dated the 3rd day of May 2022
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
[1] Re: Moshsin Ali, [2018] HKCA 549
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