HCAL 1646/2018
[2019] HKCFI 2990
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1646 of 2018
BETWEEN
| Kumaroh | 1st Applicant |
| Iqbal Zara Mudassar | 2nd Applicant |
| and | |
| Torture Claims Appeal Board/
Non-refoulement Claims Petition Office | Putative Respondent |
| 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;
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. They are not legally represented and they did not request an oral hearing. As the mother’s and the daughter’s case refers to the same set of facts, I shall simply refer to the mother as (“the applicant”). 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, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if the applicant had a fair screening before the Immigration office and the Board and if there are any further grounds in support of the application. In response to the Court’s letter, the applicant appeared before this Court.
2. This is the applicants’ joint 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
3. The applicant is a national of Indonesia. She came to Hong Kong as a domestic helper and was allowed to stay as such. Her employment contract was terminated on 29 August 2015 when she was heavily pregnant. On 7 October 2015, she surrendered to the Immigration Department as an overstayer. She lodged her non-refoulement claim on 2 November 2015.
4. In support of her claim, she claimed that if refouled, she and her daughter would be harmed or killed by her parents for bringing disgrace to the family by her ritual marriage to a Pakistani and giving birth to his daughter. She also claimed that she feared being isolated and looked down upon by people in her community in Indonesia.
The Director’s Decision
5. The Director considered their 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”).
6. By Notice of Decision dated 18 November 2016, the Director refused their claims for the reason that their claims were not substantiated.
The Board’s Decision
7. The applicants appealed to the Board and the 1st Applicant attended a hearing before the Adjudicator on 27 March 2018.
8. By Decision dated 3 August 2018 (“the Board’s Decision”), the Board rejected their appeal and confirmed the Director’s Decision.
9. The Board considered the applicants’ evidence and, for the reasons set out in the Board’s Decision, came to its conclusion refusing their appeal and confirmed the Director’s Decision. Below are the reasons.
a. It found that the applicants failed to establish that there existed a well-founded fear that they would be subjected to persecution, for a convention reason, if they were refouled to Indonesia [44(A)(h)]
b. There were not substantial grounds that they would face a genuine and substantial risk of being subjected to severe ill-treatment if they returned to Indonesia [44(B)(c)].
c. It found no substantial grounds for believing that the applicants would be liable to torture if they return to Indonesia [44( C)( c)].
d. There was no evidence that BOR 2 would be violated [44(D)(a)].
e. Internal relocation is an option open to the applicants [50].
10. In her Form 86, the applicants applied for leave to apply for judicial review of the Board’s Decision.
11. In her affirmation in support of their application, the applicant simply asked the Court to review their case as the Director and the Board disregarded their dangerous situation.
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 and she could read English. She understood the Hearing Bundle and the Board’s Decision herself.
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 their facts were not challenged by the Board, which applied the appropriate laws and Convention to their case. The Adjudicator was entitled to reach the decisions.
15. The Court of Appeal in Re: Moshsin Ali[2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42].
16. The applicants fail to show that they have a reasonable chance of success in their proposed judicial review.
CONCLUSION
17. Since the applicants’ application for judicial review has no reasonable prospect of success, I refuse to grant them leave to apply for the judicial review. Accordingly, I dismiss their application.
Dated the 11th day of December 2019
| | (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
Notesfor 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 11/12/2019
Kumaroh
(1st Applicant)
Iqbal Zara Mudassar
(2nd Applicant)
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 11/12/2019
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 5332/16/11/271/I522;
USM 5333/16/11/272/I523
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 2271/16(formerly RBCZ 12589/16);
QA T/C 2272/16(formerly RBCZ 12590/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1