|
HCAL1911/2018
[2019] HKCFI 1281
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1911 of 2018
BETWEEN
| Kartini |
Applicant |
| and |
The Adjudicator of the Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
1st Putative Respondent |
| The Director of Immigration |
2nd Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
| |
consideration of the documents only; or |
| |
consideration of the documents and oral submissions 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 (Order by Deputy High Court Judge K.W. Lung):
THE APPLICATION
1. This is the applicant’s application for leave for judicial review against the respective decisions of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).
The applicant
2. The applicant is a national of Indonesia. She arrived in Hong Kong as a domestic helper and was permitted to stay until 18 December 2014. Her employment was terminated prematurely. She overstayed. She surrendered herself to the Immigration Department on 1 December 2015. By way of written submissions respectively dated 22, 23 and 28 February 2017, she lodged her non-refoulement claim.
3. In her statements given to the Director and the Board, she claimed that if she was refouled, she would be harmed or killed by her husband and the creditors because she acted as the guarantor for her husband who owed the creditors a lot of money. Her husband was a drunkard and he always abused her with violence after drinking. He borrowed a lot of money for his timber business from the creditors, with her as the guarantor. She worked in Hong Kong as domestic helper and remitted money to her husband. But he did not repay the loans. The creditors came to her house together with other people and pressed for repayment of the loans. She was unable to pay. Her husband also threatened her to get money for the repayment of the loans or he would kill her.
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. 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 under RC”).
5. By Notice of Decision dated 27 February 2018 (“the Director’s Decision”), the Director rejected 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 7 June 2018.
7. By Decision dated 24 August 2018 (“the Board’s Decision”), the Board refused her appeal and confirmed the Director’s Decision.
8. The Board considered the applicant’s case and raised the concern that her evidence given to the Director was different from that she gave to the Board [§43 & §45]. Having assessed the differences in her evidence, the Board found:
“ 68. On the evidence before it, the Board does not accept the Appellant fears returning to Indonesia for the reason she has claimed, or for any other reason. The Board does not accept the Appellant’s husband took a loan in 2006 or 2011, and the Board does not accept the Appellant was a guarantor for any loan or that she has been threatened and assaulted by her husband or creditors or debt collectors in relation to a loan. The Board does not accept the Appellant’s husband or his creditors or debt collectors or anyone else will harm her for any of the reasons she has claimed, or for any other reasons, if she returns to Indonesia.
69. In light of the findings above, the Board considers the Appellant would not be at risk of any harm if she returned to Indonesia. The Board finds that there is not a real risk the Appellant would face any of the proscribed forms of harm should she return to Indonesia.”
9. In her Form 86 dated 11 September 2018 under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decision and the Board’s Decision respectively.
10. In the attachment...
| 
