NINING WAHYUNI 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:

1.  The Applicant’s Form 86 be amended to name the Torture Claims Appeal Board / Non-refoulement Claims Petition Office as putative respondent and the Director of Immigration as putative interested party; and

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

Observations for the Applicant:

1.  By a Form 86 filed on 25 August 2021 (“Form 86”), the Applicant sought leave for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”) and the Director of Immigration (“DI”) dated 3 August 2021.  The Applicant has not exhibited a copy of the decision she wishes to challenge to the supporting affirmation.  The Court’s staff later obtained from the Secretariat of the TCAB a copy of a decision bearing the Applicant’s name and reference number.  It seems the DI made a tier-1 decision on the Applicant’s non-refoulement claim on 7 June 2021, and the TCAB (the relevant member sitting also as an adjudicator of the Non-refoulement Claims Petition Office (“NRCPO”)) made a tier-2 decision on 3 August 2021.  In the circumstances, on my own motion, paragraph 1 of the above orders is made to properly name the parties of these proceedings. A copy of the TCAB/NRCPO’s decision dated 3 August 2021 can be seen from the following hyperlink[1].

2.  The Applicant does not require an oral hearing for this leave application; I dispose of this application by consideration of documents only.

3.  The Applicant is an Indonesian national. Her non-refoulement claim was based on an alleged risk of being harmed or killed by a moneylender.  After an oral hearing, the TCAB/NRCPO came to the finding that the Applicant was not subject to any real or substantial risk of being harmed, killed, tortured or violated her fundamental human rights should she return to Indonesia; neither was she under any well-founded fear of being persecuted so that she had to stay outside Indonesia.

4.  In coming to this finding, the TCAB/NRCPO considered the Applicant’s evidence at the hearing about the terms of the loan she borrowed and how she used the loan to be vague and inconsistent.  Nevertheless, the TCAB/NRCPO still accepted that the Applicant had a genuine yet subjective fear of her moneylender.  The risk was however assessed to be remote or speculative.     

5.  The Applicant has not set out any ground of judicial review.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the TCAB/NRCPO.  In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the findings below or make a determination on the case afresh.  The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).  I have reviewed the TCAB/NRCPO Decision vigorously, but do not find the proposed judicial review reasonably arguable. 

6.  The leave application is thus 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