Dewi Ratna v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2763/2018

[2021] HKCFI 2149

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2763 of 2018

BETWEEN

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 Applicant 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 Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 22 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.The applicant is an Indonesian national.  She came to Hong Kong as a visitor on 9 June 2008.  She overstayed and was arrested by police in connection with a number of offences, for which she was charged, convicted and sentenced.  She lodged

5.The applicant claimed that, if refouled, she would be harmed or killed by her step-mother, Sumini upon her return to Indonesia.  Her father had incurred hefty debt for the medical expenses of her mother, who passed away.  Her step-mother was unhappy when the creditors came to demand repayment of the debts.  The creditors and their people assaulted her father when they could not obtain money from him.  Her step-mother blamed her for the debts.  Her step-mother threatened that she should pay off the debts or she would be killed.  In 2005, there was a fight between her step-mother and herself.  As a result, her step-mother used a sickle to hurt her on her chest.  She had to leave home to avoid her step-mother.  She came to Hong Kong.  Details of her story are set out in paragraph 7 of the Director’s Decision.

The Director’s Decision

6.As the applicant had made torture claim protection and failed, the Director considered her application in relation to the following risks:

a.  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”);

b.  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

c.  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”).

7.By Notice of Decision dated 15 February 2018 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated.  The Director found that there were no substantial grounds in believing that she would face the risk of harm from her step-mother if she returned to Indonesia [18]; that state protection would be available to her [20] and that internal relocation was an option open to her [23].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision.  She appeared before the adjudicator of the Board on 28 September 2018.

9.The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision.  The Board found that the applicant’s evidence was unreliable and it did not believe that her step-mother would pursue her, harm or kill her if she returned to Indonesia [73-78]; that state protection would be available to her [79]; that internal relocation was an option open to her [95] and that her fear of being subjected to ill-treatment by her step-mother was based entirely on her own belief or speculation [96]. On the above factual basis found, the Board rejected her appeal.

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 5 December 2018 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant did not set out any specific grounds for her application.

DISCUSSION

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

13.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.”

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

15.The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

16.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.

Dated the 27^th day of July 2021

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