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

CACV 293/2022

[2022] HKCA 1653

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 293 OF 2022

(ON APPEAL FROM HCAL 675 OF 2019)

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Before:  Hon Chow JA and K Yeung J in Court

Date of Hearing: 24 October 2022

Date of Judgment:  14 November 2022

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J U D G M E N T

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Hon K Yeung J (giving the Judgment of the Court):

1.The is an appeal[1] against the decision of Deputy High Court Judge KW Lung given on 26 July 2022 refusing leave to the Applicant to apply for judicial review (the “Judge” and the “Judge’s Decision”). The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 4 March 2019 (the “Board”, and the “Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration dated 31 August 2018 rejecting the applicant’s non-refoulement claim (the “Director”, and the “Director’s Decision”).

Background

2.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 overstayed, and was on 11 June 2018 arrested by the police.  She subsequently lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her brother because she had refused to marry a creditor of her parents.  Details of the Applicant’s claim were summarised by the Judge at §§1-5 of the CALL-1 Form.

3.By Notice of Decision dated 31 August 2018, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[2], BOR 2 risk[3], BOR 3 risk[4], and persecution risk[5].

4.The Applicant appealed against the Director’s Decision. On 4 March 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision.

5.The Board found that her alleged fears were not established.  The Board considered that the Applicant had suffered no serious harm from her brother or her parents’ creditor.  Her worries of risks concerned were purely a domestic matter but were not on account of race, religion, nationality, membership of a particular social group or political opinion.  She was able to return to Indonesia.  There was no state involvement. There was no evidence of lack of state protection.  In any event, internal relocation was a viable option.  The Board concluded that the Applicant had not established that she was at risk under the applicable grounds of her claim.

The Judge’s Decision

6.On 11 March 2019, the Applicant filed her Form 86 and affirmation in support for leave to apply for judicial review against the Board’s Decision.

7.The Applicant has failed to specify any ground for relief in the Form 86.  In her affirmation, she only stated that “I would like to reject and review the decision made by Immigration Department on my case.  They disregard my dangerous situation.”

8.For reasons set out in the Form CALL-1 of 26 July 2022, the Judge refused to grant leave to the Applicant to apply for judicial review.  The main reasons are as follows:

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

…

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.”

9.Accordingly, the Judge dismissed the Applicant’s leave application.

Grounds of appeal, and the appeal

10.In her Notice of Appeal dated 29 July 2022, the Applicant seeks an order that the Order of the Judge dismissing her leave application be set aside, and that leave to apply for judicial review be granted.  The sole ground of appeal set out therein is:

“The High Court dismissed my apply but failed to show any reason. Adjudicator did may wrong but the High Court could not find.”

11.In her 3-page written submissions dated 23 September 2022, the Applicant repeats her fears of being refouled.  She claims that she has life threat in her motherland.  She is very weak compared with her “enemy”, who was “a monster”.  She claims that “the authority helped him because he gave big amount to police and other department”.  She claims that the police tortured her.  She claims further that the Director and Board have made “many many mistake”.  No particular of those mistakes have been provided.

12.During the hearing, the Applicant only added that she wanted a chance to stay in Hong Kong, and that she had lost contact with her family.

Discussion

13.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

14.The Applicant has failed to provide any particulars as to what “mistake” the Director or Board has allegedly made, and how the Judge has allegedly erred in having failed to find them.  The assessment of evidence, country of origin information materials, 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: Re Kartini [2019] HKCA 1022.  The Board has made its findings.  The Judge has made no error in accepting them, whether in law or in fact.

15.The Form CALL-1 has also sufficiently set out the reasons explaining why the Judge dismissed the Applicant’s leave application.

16.The Applicant has failed to put forward any viable ground of any merits.

17.We dismiss the Applicant’s appeal.

The Applicant, acting in person.

[1]  By Notice of Appeal filed on 29 July 2022.

[2]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3]  This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4]  This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5]  This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.