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

HCAL 603/2020

[2025] HKCFI 3026

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 603 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.   The Form 86 be amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent, naming only the Director of Immigration as the Putative Interested Party, and substituting “TCAB/NRCPO Decision dated 16 January 2020” in place of “13 Feb 2020”; and

2.   Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a citizen of Indonesia. By a Form 86 dated and filed on 14  April 2020 (“Form 86”), accompanied by a supporting affirmation also dated and filed on 14 April 2020 (“the Affirmation”), the Applicant sought leave to commence a judicial review “for my non repardment(sic) claim 13 Feb 2020”.

2.  The Applicant did not seek an oral hearing of her application.  I have hence dealt with such on paper.

3.  There was no non-refoulement decision dated 13 February 2020 relating to the Applicant. However, there was a decision of the Torture Claims Appeal Board(“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) dated 14 January 2020 (“the TCAB Decision”)[1] relating to the Applicant, which was sent as an attached document to her by way of a letter dated 14 January 2020.

4.  No grounds for judicial review are set out in the Form 86 or the Affirmation. The latter states that she does not want to go back to her country because her father had asked her to marry a “loand” and the “loand” would ask her to change religion.

5.  In the circumstances, and having regard also to the contents of the TCAB Decision, I take it that she seeks leave for judicial review of the TCAB Decision and have therefore amended the Form 86 of my own motion as set out above.

Background

6.  The salient portions of the Applicant’s background and case as to the incidents underlying her claim for non-refoulement relief, and the immigration and procedural history leading up to the TCAB Decision, are set out in the TCAB Decision (Paragraphs 1 to 12). I will not repeat them but in essence, the Applicant’s claim for non-refoulement protection on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] stem from the fear of being harmed or killed by her parents and a loan shark if she is returned to Indonesia as she has refused to marry the loan shark, to whom her father owed a large sum of money. Such claims were rejected by the Director of Immigration (“the Director”) in a decision dated 20 July 2017 (“Director’s Decision”). She hence appealed/petitioned to the TCAB/NRCPO, which appeal/petition was unsuccessful as reflected in the TCAB Decision.

Legal Principles

7.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86 (Ho Loy & Another v Director of Environmental Protection, (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142).

8.  It is trite that judicial review is not a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising a decision of the TCAB/NRCPO due to the seriousness of the issue at hand, 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 TCAB/NRCPO (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).)

9.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (Re Zunariyah [2018] HKCA14, at §23).

Discussion

10.  As the Applicant has not identified or set out any grounds of judicial review, there is no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision. However, given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

11.  I have already summarised and will not repeat the contents of TCAB Decision Paragraphs 1 to 12 above. There is then discussion, with reference to the relevant case law and principles, of the legal principles and framework relating to Persecution Risk, BOR 3 Risk, BOR 2 Risk, Torture Risk (Paragraphs 13 to 33), on how to assess risk with regard to the relevant standard of proof and level of risk (Paragraphs 34 to 38), and on the approach taken and that was applied in assessing credibility and establishing facts (Paragraphs 39 to 43).

12.  The next section concerns the findings made by the TCAB/NRCPO and reasons for such. The TCAB/NRCPO set out what the Hearing Bundle included (Paragraph 44). This was followed by a summary of the conduct of the hearing and some of its views on the general conduct and credibility thereof, in particular to the Applicant’s statement at the oral hearing that (contrary to what was said in her Non-Refoulement Claim Form (“NCF”)) she had no fear of being harmed or killed by the loan shark. This evidence was accepted by the TCAB/NRCPO, which gave adequate reasons for such and held that she did not fear any harm by the loan shark if she were refouled to Indonesia (Paragraphs 45 to 48).

13.  The TCAB/NRCPO then summarised the evidence available to it and concluded, with reference to and reasons given for such, that even if her father’s threat to kill her was said with serious intent, the member/adjudicator was not persuaded that (i) the Applicant’s father would so pursue her if she relocated to another part of Indonesia, and (ii) that the Applicant’s father would have the means or resources to locate her if she did so. The Applicant hence did not face a real risk that her life would be in danger or that she would suffer ill-treatment if she returned to Indonesia, for while it was accepted that she faced a real risk of loss of life or ill-treatment from her father if she were to return to her home village of DS Kepu Plosore join Wonogiri Regency, there was sufficient state protection within other larger towns and cities within in Wonogiri Regency, and given the highly localised nature of such threat internal relocation was available and was not unduly harsh (Paragraphs 49 to 73).

14.  The TCAB/NRCPO then went on to find on the facts that there was no Persecution Risk, BOR 3 Risk, BOR 2 Risk, or Torture Risk. It accordingly denied the claim for non-refoulement protection on the four applicable risk grounds and confirmed the Director’s Decision (Paragraphs 74 to 87).

15.  I do not, from my aforesaid examination and scrutiny, see that it is reasonably arguable that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test vitiating the TCAB Decision. This is especially so as to the assessment, reasoning, and findings regarding the risk of harm, availability of state protection, viability of internal relocation, and Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk, which are all matters primarily within the province of the decision-making body and as to which adequate reasons were given.

16.  Given the TCAB Decision and the aforesaid analysis, I do not see that the Applicant’s application for leave is assisted by her vague and unsubstantiated allegations in the Affirmation, and I do not see how they are relevant to the issues before me. I hence reject them.

17.  I am not therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

18.  In the circumstances, I have ordered that the application for leave to apply for judicial review be 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