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

HCAL 798/2019

[2023] HKCFI 1219

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 798 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 last entered Hong Kong as a visitor on 9 December 2016 and was permitted to stay until 8 January 2017. She did not depart and had overstayed since 9 January 2017. On 23 February 2017, she surrendered to the Immigration Department. On 28 February 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 husband and the loan sharks due to the family dispute and the loan dispute.

5.In short, the applicant’s husband had drinking problem and was abusive towards her. In 2007, she sought to propose a divorce but her husband disagreed. He threatened to kill her and hurt their daughter if she insisted. Due to his drinking problem, her husband borrowed loans from the loan sharks. He even stole and sold two motorbikes that were meant to be repaired by him. Thereafter, the loan sharks had been chasing the applicant for repayments. They even kidnapped the applicant’s daughter and only released her after the applicant paid a sum a week later. In November 2016, her husband made a threatening phone call to her and demanded her to repay his loans. Out of fear, the applicant decided to seek protection in Hong Kong. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 13 April 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) her claim was based on her speculations only [13]; (ii) the conducts of her husband the loan sharks showed no real intention to cause harm or even kill her [14]; (iii) her behaviors were inconsistent with someone who feared a risk of harm [15]; (iv) state protection would be available to her [16]-[20]; and (v) internal relocation was a viable option [21]-[25].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 30 November 2018, the Board conducted an oral hearing for her appeal, during which it discussed the material aspects of the applicant’s claim and gave her the chance to make submissions, with the assistance of an interpreter [8]; [26].

9.Having considered the evidence, the Board made the following findings. It accepted that the applicant was in an abusive marriage [29]-[34]. It considered that the applicant’s right under BOR3 might be violated as there might be actual bodily harm from the husband if she returned to her home village. However, the dispute remained a private one without state involvement [35]. Meanwhile, the Board also considered that there was no real risk to the applicant from her husband if she relocated to other areas in Indonesia and this was a viable option for the applicant [40]-[42]. Insofar as the claimed fear of harm from the loan sharks, the Board found that the applicant’s evidence on this aspect was not credible [37]-[39].

10.For the aforesaid findings, the Board rejected the applicant’s claim 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 22 March 2019 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant said the Director and the Board did not take into account of the absence of state protection and did not consider her family problems in Indonesia.

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.The Board found that the risk of being abused by her husband would be alleviated by state protection and internal relocation. Her evidence of the loan shark was rejected by the Board as incredible. She is therefore not subjected to any real risk of harm upon her return to Indonesia. The reasons stated in paragraph 12, supra are only her opinion without any evidence in support. They are not valid 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 11^th day of May 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