WIWIK v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 896/2020

[2025] HKCFI 5301

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 896 of 2020

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 submissions by the Applicant in open court

(1)   Form 86 be amended, naming only the Non-refoulement Claims Petition Office and the Director of Immigration as the Putative Respondent and the Putative Interested Party respectively.

(2)   The application for leave to apply for judicial review be refused.

Observations for the Applicant:

Introduction

1.  By Form 86 (“Form 86”) filed on 13 May 2020, the Applicant seeks leave to apply for judicial review (“the Leave Application”) of the Non‑refoulement Claims Petition Office’s decision dated 5 March 2020 (“the Adjudicator’s Decision”), confirming the Director of Immigration’s decision dated 16 November 2018 (“the Director’s Decision”), which rejected her non-refoulement claim on all applicable grounds other than risk of torture.

2.  The Applicant’s personal background, her case, and her claims that she would be harmed by her boyfriend Sudirman in Indonesia if returned, together with the relevant immigration and procedural history, were set out in the Adjudicator’s Decision.  It is not necessary to repeat them here, and for completeness’ sake, reference can be made to that decision, the hyperlink to which is included below[1]. Unless otherwise specified, I shall adopt the abbreviations and descriptions used by the Adjudicator below.

Discussion

3.  For the reasons set out below, I am not satisfied that the Applicant’s intended application for judicial review of the Adjudicator’s Decision is reasonably arguable with any realistic prospect of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676). 

4.  The Applicant’s claims, as set out in the Questionnaire, her written submissions, records of interview in 2012 and 2018, the Notice of Petition dated 2 March 2012 against the refusal of her torture claim, her letter dated 26 February 2013, her SCF dated 27 September 2018, the Director’s Decision, the Notice of Appeal dated 28 November 2018, her oral evidence given on 3 Mary 2019, and the hearing bundle (including the COI information), were all considered by the Adjudicator.  The Applicant also confirmed that her claims and the reasons why she did not wish to return remained the same as those advanced in her torture claim.  Having reviewed all of these materials, the Adjudicator made findings of fact as follows:

(1)   The Adjudicator questioned the Applicant in detail about her relationship with Sudirman in Indonesia, the reasons why she left the country, what Sudirman did to her family, and why she did not wish to return.  The Adjudicator raised a number of concerns regarding discrepancies between her oral evidence and the information previously provided.  The Adjudicator did not accept that her responses adequately explained these inconsistencies.  The Adjudicator considered the differences to be “significant” and reflective of poor credibility and reliability in her evidence and claims. 

(2)   The Adjudicator found that the Applicant was not a credible witness and was not satisfied that she had been truthful regarding the “critical” aspects of her claims.  Based on the evidence, he did not accept that Sudirman had harassed, threatened, or assaulted her or her family, nor that Sudirman had caused harm to them or contributed to her mother’s death.  He also rejected the assertion that her family relocated to avoid Sudirman.  The Adjudicator was not persuaded that she feared return for the reasons alleged or on any justifiable basis, and did not accept that anyone in her country had an adverse interest in her.  Overall, the Adjudicator was not satisfied that there was a real risk of her being harassed, harmed, persecuted, or killed upon return.

(3)   Given the findings above, the Adjudicator was not satisfied that there were substantial or strong grounds to believe that the Applicant faced a real risk of torture or CIDTP in her country.

(4)   As the Adjudicator found no real risk of her being subjected to any of the prescribed forms of harm, the Adjudicator was not satisfied that there were substantial grounds to believe she would be arbitrarily deprived of her life.  The Adjudicator did not accept that she faced a real risk of death penalty or any deprivation of her rights under BOR 2.  Accordingly, the Adjudicator concluded that her return to the country would not expose her to a real risk of violation of her right to life nor amounting to a breach of BOR 2. 

(5)   For similar reasons, the Adjudicator was not satisfied that there was a real chance, real risk, or a substantial risk that the Applicant would suffer harm or persecution upon return.  He did not accept that she faced a real risk of persecution for any reason, including race, religion, nationality, membership of particular social group, or political opinion.  On the evidence, it was not demonstrated that the Applicant had any well-founded fear of persecution on the Refugee Convention basis.

5.  The Adjudicator therefore concluded that the Applicant was not entitled to

non-refoulement protection in Hong Kong on any of the applicable grounds under the USM and confirmed the Director’s Decision.  The Applicant has not raised any complaint of error of law, procedural unfairness, or irrationality in relation to such decision (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142), nor am I satisfied that any such issues exist, bearing in mind the enhanced standard required by law to uphold the high standard of fairness in decision-making (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14).

6.  In the absence of any public law errors, the Court’s role in a judicial review is not to provide a further avenue of appeal (see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163).

Conclusion

7.  For these reasons, the Leave Application is dismissed.

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