Re Kartini

Judgment Date09 September 2019
Neutral Citation[2019] HKCA 1022
Year2019
Judgement NumberCACV240/2019
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV240/2019 RE KARTINI

CACV 240/2019

[2019] HKCA 1022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 240 OF 2019

(ON APPEAL FROM HCAL 1911/2018)

________________________

RE: KARTINI Applicant

__________________________

Before: Hon Lam VP and Bharwaney J in Court
Date of Hearing: 3 September 2019
Date of Judgment: 9 September 2019

________________________

JUDGMENT

________________________

Hon Lam VP (giving the Judgment of the Court):

Introduction

1. This is an appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”) given on 23 May 2019 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Director of Immigration (“the Director”) dated 27 February 2018 and the decision of the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 24 August 2018. In the former decision, the Director rejected the applicant’s claim for non-refoulement protection in Hong Kong; and, in the latter decision, the Board upheld the decision of the Director.

Background

2. The applicant is a national of Indonesia. She had been working in Hong Kong as a domestic helper since 2003. According to her last permission to remain, she was allowed to work in Hong Kong as a domestic helper until 18 December 2014. Her employment contract was prematurely terminated on 3 May 2014. She did not depart and overstayed illegally. She surrendered to the Immigration Department on 1 December 2015, and lodged her non-refoulment claim by way of written submissions on 22, 23, and 28 February 2017.

3. The applicant’s claim was based on the fear that, if refouled, she would be harmed, or even be killed, by her husband and her husband’s creditors because she acted as a guarantor for her husband’s loan. The factual background of this case was succinctly summarized by the Judge in [3] of the Form CALL-1 ([2019] HKCFI 1281).

4. By a notice of decision dated 27 February 2018, the Director assessed the applicant’s claim on all applicable grounds, including the risk of violation of absolute and non-derogable rights guaranteed under the Hong Kong Bill of Rights (particularly, the BOR 2 risk[1] and the BOR 3 risk[2]), the persecution risk[3], and the torture risk[4].

5. The applicant lodged an appeal/petition to the Board against the Director’s decision. An oral hearing was held on 7 June 2018, and the applicant gave oral evidence during the hearing. Having considered the applicant’s evidence, the Board was not satisfied that the applicant was a truthful witness in relation to critical aspects of her claim. The Board did not accept that there was substantial ground for believing that the applicant would be in danger of being subjected to ill-treatment if refouled. By a decision dated 24 August 2018, the Board dismissed the applicant’s appeal/petition.

The judge’s decision

6. The applicant filed her Form 86 on 11 September 2018, seeking leave to apply for judicial review against the Director’s and the Board’s decisions. She set out a number of grounds for seeking relief in her affirmation filed on the same day in support of the application. Most of the grounds concerned the decision of the Director. So far as the decision of the Board is concerned, the applicant submitted that the Board failed to give her sufficient time and chance to arrange relevant evidence in support of her case. The grounds were summarized by the Judge in [10] of the Form CALL-1.

7. An oral hearing was held before the Judge on 28 March 2019. At the hearing, the applicant made no comments in respect of the findings of the Board.

8. The Judge refused to grant leave for the applicant to apply for judicial review. In reliance on the judgment of this Court (differently constituted) in Re Moshsin Ali [2018] HKCA 549, the Judge held that the application for leave to apply for judicial review against the Director’s decision failed in limine. At [20] of the Form CALL-1, the Judge rejected the applicant’s complaint against the Board’s decision on the grounds that she did not raise it with the Board and that she was unable to identify what further evidence she would like the Board to consider.

The appeal

9. On 30 May 2019, the applicant filed a notice of appeal. In it, the applicant advanced the following grounds of appeal:

“ … the gravity of my...

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