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

HCAL 1207/2018

[2021] HKCFI 604

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1207 of 2018

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 (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.  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.

2.  The applicant applies for leave to apply for judicial review of the Decision dated 8 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

3.  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.

The applicant

4.  The applicant is an Indonesian national. She had had a checkered history of entering and leaving Hong Kong. During her stay in Hong Kong, she had three times absconded from the Immigration Department and arrested by police. On 28 December 2011, she lodged her non-refoulement claim with the Immigration Department.

5.  The applicant claimed that, if refouled, she would be harmed or killed by the creditor because she was unable to repay the loan she had drawn down. She also feared that she might be harmed by the Muslims as she is a Christian. The loan was drawn for construction of her home for the family. However, her husband left her alone before the house had been constructed. She was unable to repay the loan to the creditor, who had threatened to kill her. She had worked as domestic helper in Jakarta and Hong Kong. Details of the incidents are in paragraph 13 of the Board’s Decision.     

The Director’s Decision

6.  The Director considered her application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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 Notice of Decision dated 27 July 2017 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found that the level of risk of harm if she returned to Indonesia [13]; that state protection was available to her [18] and that internal relocation was an option open to her [21-26].

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision and attended the hearing on 26 March 2018.

9.  The Board rejected her appeal and affirmed the Director’s Decision.

10.  The Board considered the applicant’s evidence and made the findings below.

a.  The Board, having considered the evidence, considered that there was only a remote or speculative risk and therefore not a real risk that the applicant would face harm of BOR 2, BOR 3 or Persecution risk from communal violence if she returned to Indonesia. [33]

b.  The Board, having considered the evidence, considered that there was only a remote or speculative risk and therefore not a real risk that the applicant would face harm of BOR 2, BOR 3 or Persecution risk from the creditor if she returned to Indonesia. [37]

c.  For the reasons above, it rejected her claim on all the risks in 6 above.

Application for leave to apply for judicial review

11.  The applicant filed Form 86 on 27 June 2018 for leave to apply for judicial review of the Board’s Decision. She said in her affirmation that she was not satisfied with the Director’s Decision [the Board’s Decision] and that he had failed to consider all the matters raised and /or give adequate reasons for his Decision.

DISCUSSION

12.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. In a nutshell, the Board rejected her evidence on the facts in support of her claim. See paragraph 10 above.

13.  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.”

14.  The applicant’s grounds in support of her application are her opinions without any evidence or specifics. The Director and the Board had given reasons in support of their respective Decisions. See §§7 & 9 above.

15.  The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

17.  I refuse her application for leave 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