CUSY RIYANI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

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

Following:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 20 December 2022 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 2 December 2022 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 17 December 2021 (the “DOI Decision”).

2.  The Applicant requested for a hearing of this application and she attended the same. When asked if she had anything to add, she said that she got married here and was waiting for a dependent visa which was still under process.

Background

3.  The Applicant is a national of Indonesia. In gist, she fears that she will be ill-treated or even killed by her creditor if she returns to Indonesia. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB’s Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them. Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

Discussion

4.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

5.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  A finding of fact is exclusively within the realm of the TCAB, and this 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 TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

7.  The Applicant did not state any grounds on which the relief is sought, and hence did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.

8.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [36-70].  It is noteworthy that the TCAB took no issue on the Applicant’s credibility, but noted that she produced nothing to support her case and the alleged threats, such as her claim that her creditor was a loan shark with triad background who would use violent tactics to enforce repayment [33, 43]. In particular, the TCAB noted that the loan shark charged a reasonable interest rate and agreed to lend money despite the Applicant being abroad [44-45]. The loan shark had also never harmed her family members (when her parents and her son resided in the same place in the village where the loan shark was close by) or vandalised their home [46-47]. Having considered all available material evidence, the TCAB found that it was unlikely that she would suffer any severe ill-treatment or serious harm if she returned to her home country [42-50]. In any event, if the Applicant was refouled, effective state protection [51-56] and internal relocation would be available to her [57-59].

9.  I have also considered the Applicant’s oral submissions. The Applicant’s visa application in Hong Kong is not valid grounds or relevant consideration in relation to her own non-refoulement claim: Oguzie Ikechukwu Charles v Torture Claims Appeal Board, unreported, CACV 469/2021, 21 January 2022, [2022] HKCA 135, at [20] and Re Adeel Muhammad, unreported, CACV 71/2022, 7 August 2023, [2023] HKCA 948 at [7].

10.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review 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