YUSI AGUSTINA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 828/2019

[2023] HKCFI 841

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 828 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;

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 1 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”, which dismissed her appeal against the Director’s decision not to re-open her non-refoulement claim withdrawn by herself previously.

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 Director’s Decision refusing to re-open her non-refoulement claim

4.  The applicant is a national of Indonesia. She lodged a non-refoulement claim by way of written representation of 24 April 2014.

5.  By a letter of 14 November 2017, the applicant requested to cancel her non-refoulement claim. By a letter of 29 November 2017, the applicant was informed by the Immigration Department that her non-refoulement claim was treated as withdrawn.

6.  By a letter dated 21 March 2018, the applicant requested for re-opening her non-refoulement claim.

7.  By a letter of 20 April 2018, the Immigration Department requested the applicant to provide further information and evidence in writing on or before 4 May 2018 in support of her application. She was reminded that if she failed to do so, her application would be assessed on the information available and might be rejected. The applicant did not supply the information or evidence as required of her.

8.  The available information before the immigration officer for consideration are:

(1)  the applicant wishes to apply for non-refoulement protection on grounds of risks of Cruel, Inhuman or Degrading Treatment or Punishment (“CIDTP”); and

(2)  under no circumstances should she be removed from Hong Kong until her non-refoulement have been determined.

9.  By way of the Director’s Decision dated 30 May 2018 (“the Director’s Decision”), the Director refused the applicant’s application for re-opening her non-refoulment claim.

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. The Board determined the applicant’s appeal without a hearing, pursuant to section 12 of Schedule 1A of the Immigration Ordinance (Cap.115) (“the Ordinance”).

11.  As there was no argument over the facts above, the Board accepted the facts set out in the Director’s Decision. It then considered section 37E of the Ordinance:

(1)  A claimant may, before a torture claim is decided under section 37ZI, withdraw the claim by notifying an immigration officer in writing.

(2)  Subject to section 37ZF(3), a torture claim that has been withdrawn under subsection (1) may be re-opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that—

(a)  since the withdrawal, there has been a change of circumstances  that—

(i)  could not reasonably have been foreseen by the person when the person gave the notification under subsection (1); and

(ii)  when taken together with the material previously submitted for the claim, could increase the prospect of success of the claim; or

(b)  by reason of special circumstances, it would be unjust not to re-open the claim.

(3)  If an immigration officer decides to re-open a person’s torture claim under subsection (2), the immigration officer must, by written notice, inform the person of the decision.

(4)  If an immigration officer decides not to re-open the person’s torture claim, the immigration officer must, by written notice, inform the person of—

(a)  the decision;

(b)  the reasons for the decision; and

(c)  the person’s right under section 37ZR to appeal against the decision.

12.  The Board made the following findings:

(1)  what the applicant stated were bare statements without supporting evidence;

(2)  the fact that she married in Hong Kong was not a change of circumstances; it was a ground in which she withdrew her non-refoulement claim;

(3)  her allegation that all people in her village are Muslims and that it was not safe for her to go back was another bare allegation not supported by factual evidence; and

(4)  all she stated were not a change of circumstances which she could not reasonably have foreseen and the situation existed even before she withdrew her non-refoulement protection claim.

13.  Upon the above reasons, the Board, by the Board’s Decision, dismissed the applicant’s appeal.

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

14.  The applicant has filed Form 86 dated 26 March 2019 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

16.  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).

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

18.  The ground in paragraph 15 above is only her opinion and is not valid to challenge the Board’s Decision.

19.  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.

20.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

21.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

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