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

HCAL 675/2019

[2022] HKCFI 2102

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 675 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 4 March 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 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 entered Hong Kong as a visitor on 3 August 2015 and was permitted to stay until 3 September 2015.  She did not leave and had overstayed since then.  On 11 June 2018, she was arrested by the police.  By way of written representations dated 14, 15, 21, and 22 June 2018 respectively, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her brother Aris because she refused to marry her parents’ creditor Joshua. 

5.According to the applicant, one day in around May 2015, she was tricked by her brothers to leave her employment in Hong Kong and returned home in Indonesia for her father’s illness.  She later found out that everyone was healthy and they only cheated her because they wanted her to marry Joshua to settle their family loans.  Feeling offended, the applicant refused to accede to this request and was beaten by Aris with bare hands.  Out of fear, she eventually fled back to Hong Kong for protection.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 31 August 2018 by the Director (the “Director’s Decision”) and paragraph 21 of the Board’s Decision.

The Director’s Decision

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

(1)  risk of torture under Part VIIC 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, Cap. 383 (“HKBOR”) (“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 Decision, the Director dismissed the applicant’s claim for the level of risk of harm upon her refoulement was assessed to be low.  In elaboration, the Director found that (i) Aris had no real intention to seriously harm or even kill her and he did not have the resources to locate her everywhere [12]-[13]; (ii) state protection would be available to her [14]-[15]; and (iii) internal relocation was a viable option [16]-[17].

The Board’s Decision

8.The applicant appealed to the Director’s Decision to the Board.  After considering the relevant documents and legal principles, the Board decided to exercise its discretion pursuant to section 12 of Schedule 1A to the Ordinance and determined the applicant’s claim on the papers [16]-[20].

9.The Board found that her alleged fears were not established.  In reaching this conclusion, the Board considered that (i) her alleged injuries did not attain to the minimum level of severity; (ii) it was only a domestic dispute; (iii) there was no evidence of lack of state protection; (iv) the country of origin showed that the government was reforming police efficiency and (v) there was no state involvement [22]-[41].  In any event, internal relocation was a viable option for the applicant [42]-[43].  For these reasons, the Board rejected her claim and dismissed her appeal.   

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

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

11.In her affirmation in support of her application, the applicant said the Board had disregarded her dangerous situation.

DISCUSSION

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

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.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.”

15.The reason in paragraph 11 is only her opinion. The applicant has not been able to raise any valid ground to challenge the Board’s Decision.

16.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.

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

CONCLUSION

18.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 26^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