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

HCAL 2685/2018

[2021] HKCFI 3791

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2685 of 2018

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 19 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 on 27 June 2013 as a domestic helper.  Her employment contract was prematurely terminated.  She overstayed and surrendered to the Immigration Department on 27 January 2015.  She lodged non-refoulement claim with the Immigration Department by a written representation dated 4 May 2015.

5.The applicant claimed that, if refouled, she would be harmed or killed by her uncle because of an outstanding loan incurred by her parents for her deceased father’s medical operation.  Her uncle proposed to marry her off to a rich man, whom she has not seen before.  She refused. Her uncle threatened that he would kill her if he found her in Indonesia. Details of the story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decision

6.The Director considered her application in relation to the following risks:

a.  risk of torture under Part VII C 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”).

7.By Notice of Decision dated 26 February 2018 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated.  The Director found that the level of risk of her being harmed of killed by her uncle if she returned to Indonesia was assessed to be low [12]; that reasonable state protection would be available to her [13] and that internal relocation was an option open to her [18].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision.  She had appeared before the adjudicator of the Board.

9.The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision.  In paragraph 77 of the Board’s Decision, the Board recorded:

“The Board after considering the totality of the Appellant’s claims and the totality of the evidence and available information does not accept that the Appellant is a credible witness or that aspects of her claims are credible. The Board’s assessment of the Appellant’s credibility and the credibility of her claims is based on its assessment of the totality of the available evidence and information that has been referred to and that has been considered and discussed.”

10.Based upon its findings, the Board rejected the facts in support of her claim [78].  Since there is no factual basis for her claim, the Board dismissed her appeal and affirmed the Director’s Decision.

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

11.The applicant has filed Form 86 dated 27 November 2018 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant enclosed the hearing bundle and the Board’s Decision.  She did not set out any specific grounds for her application.

DISCUSSION

13.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).

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

15.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.”

16.The applicant has not been able to set out any valid ground to challenge the Board’s Decision.

17.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.

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

CONCLUSION

19.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 16^th day of December 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