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

HCAL 1092/2019

[2022] HKCFI 1435

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1092 of 2019

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 12 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Second Decision”), which dealt with her BOR2 risk of her claim.

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 a national of Indonesia. She arrived in Hong Kong on 12 December 2013 and was allowed to stay as a visitor for 7 days. She overstayed since 20 December 2013. On 8 April 2014, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by (i) her creditor because of her default in loan repayment and (ii) her husband because she wanted to divorce him.

5.According to the applicant, she borrowed $4000 from her friend Novi in Hong Kong in 2013 for her father’s medical expenses. She has not repaid Novi and did not answer her call. Novi pursued her family in Indonesia for repayment. Since 2013, she had been remitting money monthly to her husband for building a house for her family. Her husband had spent the money without building a house. She was angry and had quarrels with her husband. She told him she wanted to divorce him. He disagreed. However, she admitted that her husband had not used violence on her, nor did he threat her. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 9 April 2015 by the Director (the “Director’s First Decision”) described below.

The Director’s Decisions

6.The Director considered the applicant’s claim in relation to the following risks:

(1)  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)  risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

(3)  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

(4)  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 way of the Director’s First Decision, the Director refused the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk. The Director found that the level of risk of harm upon her refoulement was assessed to be low because (i) the absence of past ill-treatment indicated an unlikelihood of future risk of harm [13 & 14]; (ii) state protection would be available to her [15], and (iv) internal relocation was an option open to her [16]. By way of Notice of Further Decision dated 23 May 2017 (the “Director’s Second Decision”), the Director rejected her claim on BOR2 risk for the reason that there was no evidence to show that her right to life would be violated upon her return to Indonesia.

The Board’s Decisions

8.The applicant appealed the Director’s First Decision to the Board. Having considered her evidence, the Board came to its conclusion:

“24. In conclusion, the evidence of the Appellant is not credible and not reliable. I cannot rely on such unreliable evidence to make a decision in favour of the Appellant. I therefore dismiss her appeal.

25. Even if her evidence is accepted by me to be reliable evidence, I would still dismiss her appeal….”

9.The Board then assessed her evidence in relation to the risk of feared ill-treatment; the torture risk; the BOR3 risk and the Persecution risk and found that there was no evidence in support of any of those risks.

10.Thus, the Board rejected the applicant’s claim and dismissed her appeal.

11.The applicant also appealed the Director’s Second Decision to the Board. The Board held another hearing on 26 February 2019 for her. Having considered the evidence, the Board, by its Second Decision, held that there was no evidence to show that her right to life under BOR2 would be violated upon her return and dismissed her appeal.

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

12.The applicant has filed Form 86 dated 24 April 2019 for leave to apply for judicial review of the Board’s Second Decision.

13.In her affirmation in support of her application, the applicant stated that she wanted to apply for leave for judicial review of the Board’s Second Decision without specifying any ground.

DISCUSSION

14.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

16.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.”

17.The applicant has not been able to raise any valid ground in support of her application.

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

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

CONCLUSION

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

Dated the 19^th day of May 2022

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