Khian Jun Tjhia v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 497/2019

[2022] HKCFI 1791

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 497 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 10 January 2019 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 his 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. He entered Hong Kong on 12 June 2017 as a visitor and was permitted to stay until 12 July 2017. However, he did not depart and had overstayed since 13 July 2017. On 13 July 2017, he surrendered to the Immigration Department. On 30 July 2018, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by a creditor named Anang and four Muslims.

5.According to the applicant, he became a Buddhist under the influence of his parents when he was young. Nevertheless, he lived in a village where the majority were Muslims and they were against the Buddhists. In April 2016, the applicant borrowed a loan from Anang for his business. However, the business collapsed and he defaulted payments. In September 2016, Anang visited his house and assaulted him for failing to repay the loan. Thereafter, while he was discussing with his friend about their religion, they were attacked by four Muslims. The next day, the applicant was called to testify against the four Muslims. Feared that the Muslims would revenge and in order to avoid Anang, the applicant eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 12 October 2018 by the Director (the ‘Director’s Decision”) and paragraph 16 of the Board’s Decision described below.

The Director’s Decision

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

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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 way of the Director’s Decision, the Director dismissed the applicant’s claim for the level of risk of harm was assessed to be low. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [14]; (ii) the behaviors of his claimed enemies showed no real intention to seriously harm or kill him [15]-[18]; (iii) state protection would be available to him [19]-[22]; and (iv) internal relocation was a viable alternative [23]-[26].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 3 January 2019, the Board conducted an oral hearing for his appeal.

9.The Board found that the applicant’s claim was inconsistent with the relevant country of origin information (“COI”) and that he had failed to provide cogent explanations for these discrepancies [17]-[21]. For example, a centerpiece of the applicant’s claim was the compositions of his home village. It turned out, contrary to what the applicant claimed, the majority of the population was ethnic Chinese practicing Buddhism [22(1)]. Meanwhile, the COI indicated that little religious violence occurred in the applicant’s home village [22(2)]. Further, there was no evidence showing that Anang would lend the claimed amount to the applicant or that the applicant had encountered the claimed incident with the Muslims [22(3)]-[22(4)]. All these considered, the Board found the applicant to be an untruthful witness [35].

10.On the basis of lack of credibility, the Board rejected the applicant’s claim and dismissed his appeal.

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

11.The applicant has filed Form 86 dated 20 February 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant said that the decision was based on information which was biased and irrelevant; that the Board had not considered the applicant’s information and that the Board had failed to consider the threat to him upon his return to his country.

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

14.The Court will bear in mind that the Board’s Decisions 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.Those grounds above are not valid reasons to challenge the Board’s Decision. They are his opinions or comments within any evidence in support.

17.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.

18.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

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

Dated the 5^th day of July 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