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

HCAL 2510/2018

[2022] HKCFI 3670

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2510 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submission by the Applicant 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 5 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 a national of Indonesia.  She last entered Hong Kong on 25 November 2012 as a visitor and was permitted to stay until 25 December 2012.  She did not depart and had overstayed since 26 December 2012. On 24 January 2013, she was arrested by the police for overstaying.  On 28 July 2015, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her father’s creditor, Mr. Juneti.

5.In brevity, the applicant stated that her father borrowed a loan at a sum equivalent to HK$150,000 from Juneti.  She was not privy to the terms of the loan but said that her father never repaid the loan.  Thereafter, Juneti visited her home and chased for repayments every month.  In one incident, the applicant was hit in the head by Juneti.  Out of fear, she decided to stay in Hong Kong for protection.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 6 March 2018 by the Director (the “Director’s Decision”).

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 as her claimed fear of harm from Juneti was groundless.  In elaboration, the Director found that (i) her claim was merely speculative [15]; (ii) there was no evidence that Juneti intended to harm or kill her [16]; (iii) her conducts were inconsistent with someone who genuinely feared a risk of harm [17]; (iv) state protection would be available to her [18]-[21]; and (v) internal relocation was a viable option [22]-[26].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  Having considered the evidence, the Board determined that the appeal could be fairly disposed on paper [16]-[20].

9.The Board noted that the applicant’s father was never harmed by the creditor no did her alleged injuries attain a minimum level of severity [23]. It also found that the loan dispute was private in nature without state involvement [24].  Further, the country of origin information indicated that state protection would be available to her [31].  In any event, internal relocation was also a viable option for the applicant [42]-[43].  As a result, the Board concluded that the applicant’s claim was unsubstantiated and dismissed her appeal.

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

10.The applicant has filed Form 86 dated 8 November 2018 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant said that the Immigration Department has disregarded her dangerous situation.

DISCUSSION

12.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).

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

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 ground in paragraph 11 above is not valid 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 14^th day of December 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