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

HCAL 2212/2019

[2024] HKCFI 3023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2212 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Notice of Decision of the Director dated 21 September 2018, which has been superseded by the Decision dated 27 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant is a national of the Indonesia. He came to Hong Kong as a visitor and was allowed to stay until 4 September 2017. He overstayed and was arrested by police. The police referred him to the Immigration Department on 14 November 2017. He raised his non-refoulement claim by way of written submission on the basis that, if refouled, he will be harmed or killed by his creditor because he was unable to repay the loan.

5.  According to the applicant, he borrowed 600 million Indian Rupiah from his creditor for the medical expenses for his late father’s cancer. The creditor demanded repayment. He was unable to pay. The creditor took his subordinates to his home where they attacked him with samurai swords. He was seriously injured in his cheek and right hand, for which he had received 5 stitches on his left cheek and 50 stitches on his right hand in a clinic. He had reported it to police, which took no action. The creditor threatened to kill him if he did not repay his loan. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 21 September 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

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

(b)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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 way of the Director’s Decision, the Director dismissed the applicant’s claim because it was unsubstantiated. In elaboration, the Director found that (i) the low intensity and frequency of the ill-treatment from his creditor in the past was indicative of a small future risk of harm [11]; (ii) state protection would be available to him [12]; and internal relocation was viable [14].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 8 March 2019, the applicant attended a hearing before the Board.

9.  Having considered the evidence [66]-[82], the Board found:

“83. For the reasons noted above, I find that the Appellant is not a witness of truth. I find that the Appellant had not told the truth about entering a loan with a creditor, or that he owed a significant amount which he was unable to pay. …The Appellant gave inconsistent evidence about the amount of the loan, when the loan or the loans were made and the amount for which the property was sold.

…..

91. In light of the findings above, I consider that the Appellant would not be at risk of any harm if he returned to Indonesia. I find that there is not a real risk the Appellant would face any harm should he return to Indonesia for the reasons he has claimed.”

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

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

11.  In his affirmation in support of his application, the applicant said it is still dangerous for him to return to his country. He is unable to have contact with his family in Indonesia.

DISCUSSION

12.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

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

14.  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.”

15.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

16.  There is no reason that the Court should interfere with the Board’s finding of the facts.

17.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

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