Sarniawati Bt Sarim Abu v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 42/2019

[2023] HKCFI 358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 42 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 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 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 as a visitor and was permitted to stay until 12 January 2017. She did not depart and had overstayed since 13 January 2017. On 16 January 2017, she surrendered to the Immigration Department. On 30 March 2017 and 27 June 2017, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her eldest brother Sahiri and his creditor Dedi.

5.In short, the applicant claimed that Sahiri had been demanding her to help him repay the loan he took out for his excessive drinking and gambling. Initially, the applicant complied with the request. However, in 2016, Sahiri asked her to marry his creditor to settle the loan. She refused and Sahiri had been threatening to kill her since then. While the applicant ceased contact with Sahiri, she learnt that he had been looking for her. Out of fear, she decided to stay in Hong Kong for protection. Details of her claim are set out at paragraph 8 of the Notice of Decision dated 19 January 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 was groundless. In elaboration, the Director found that (i) the past experience indicated an unlikelihood of future risk of harm [13]; (ii) state protection would be available to her [14]; (iii) internal relocation was a viable alternative [15].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 5 November 2018, the Board conducted an oral hearing for her appeal, during which she testified with the assistance of an interpreter [9].

9.The Board considered her claim before the Director and her evidence at the hearing [5]-[18]. It accepted the core aspects of the applicant’s claim [26]-[32]. However, the Board noted that the dispute was private in nature without state involvement [39]-[40]; and that she never sought the protection from the police and the country of origin information showed that state protection was available [41];[54]. As a result, the Board rejected the applicant’s claim on the ground of Torture risk. Further, the applicant had not lived in Indonesia for the past 6 years and had ceased contact with her brother since 2015. She also had no information as to whether her brother had settled the loan [53]. Meanwhile, internal relocation was not an undue hardship for the applicant [58]-[59].

10.In light of the aforesaid findings, the Board rejected the applicant’s claim on the remaining grounds and dismissed her appeal.

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

11.The applicant has filed Form 86 dated 7 January 2019 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant did not raise any specific ground.

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.There is no valid ground to challenge the Board’s Decision.

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 she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

19.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 21^st day of February 2023

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