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

HCAL 900/2020

[2025] HKCFI 5304

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 900 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)   Form 86 be amended, naming the Torture Claims Appeal Board / Non-refoulement Claims Petition Office as the Putative Respondent.

(2)   The application for leave to apply for judicial review be refused.

Observations for the Applicant:

Introduction

1.  By Form 86 (“Form 86”) filed on 14 May 2020, the Applicant seeks leave to apply for judicial review (“the Leave Application”) of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (“the Board”)’s decision dated 8 May 2020 (“the Board’s Decision”), confirming the Director of Immigration (“the Director”)’s decision dated 23 September 2019 (“the Director’s Decision”), which rejected her non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

2.  The Applicant’s personal background, her case, and her claim that she would be harmed or killed by a creditor if returned to Indonesia, together with the relevant immigration and procedural history, were set out in the Board’s Decision.  It is not necessary to repeat them here.  For completeness’ sake, reference can be made to that decision, the hyperlink to which is included below[1].  Unless otherwise specified, I shall adopt the abbreviations and descriptions used by the Board below.

Discussion

3.  For the reasons elaborated below, I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospect of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).

4.  Having reviewed all the materials before it, the Board proceeded to make findings of fact, as set out below, and concluded that the Applicant had failed to establish a case of non-refoulement on the applicable grounds.  Accordingly, it dismissed the appeal and affirmed the Director’s Decision:

(1)   Regarding the risk of torture, the Board considered that the risk was low and accordingly found that the Applicant had failed to establish a claim under this head.  The Board accepted that the Applicant had suffered some bruising and swelling, but the level of injury was not serious.  She did not require medical attention or consult a doctor.  Following the incident, she was able to stay at a neighbour’s home and later returned to work in Hong Kong. Her physical and mental condition was not adversely affected, and the pain or suffering experienced did not meet the threshold required to constitute torture.

(2)   There was also no evidence to suggest that the treatment feared by the Applicant was inflicted by, or with the consent or acquiescence of, any government official or person acting in an official capacity.  There was no indication that either the Creditor or the Applicant’s husband was associated with any government authority.  It was the Applicant’s own decision not to report the matter to the police.  The government has been taking steps to address corrupt practices, and her husband remained safe in the country.  The Applicant had never been accused, charged, arrested, detained or imprisoned.  There was, therefore, no basis to conclude that she would be subjected to ill-treatment or torture by the government upon return.

(3)   Based on the information provided by the Applicant, the Board did not accept that she had a well-founded fear of persecution.  The Applicant’s fear of ill-treatment was private and personal in nature, and did not engage any of the categories protected under the Refugee Convention.  The Board found that the Applicant would have been assisted by the police had she reported the matter.  Her belief that the police were corrupt and unable to assist was based on her own subjective assumption, unsupported by evidence.  As the risk of persecution faced by the Applicant was regarded as low or remote, the Board rightly found that she had failed to establish a claim under this head.

(4)   Regarding the BOR 3 Risk, the Board was not satisfied that the physical or mental impact of the alleged ill-treatment attained the minimum level of severity required to engage protection.  The Applicant also failed to demonstrate that she faced a genuine and substantial risk of being subjected to ill-treatment upon return.  Her continued ability to return to Hong Kong for work further indicated the absence of any real risk.  The Board therefore held that this head of claim was not made out.

(5)   With respect to the BOR 2 Risk, the matter encountered by the Applicant did not involve any threat of death, let alone a sentence of death.  It was personal and private in nature, arising from a domestic financial dispute.  No charge was laid by the government against the Applicant, and there was no indication that she had ever been accused, arrested, detained, or imprisoned. Accordingly, the Board held that she had failed to establish her claim.

(6)   In addition, the Board held that, being an able-bodied individual of 45 years old with over ten years of work experience, it should not be difficult for the Applicant to secure similar employment in Jakarta or Bali, or elsewhere.  Relocation was considered viable, and she could reasonably be expected to avoid further contact with the Creditor by settling in another area.

5.  It was primarily for the Board to assess evidence, COI materials, risk of harm, availability of state protection, and the feasibility of internal relocation as discussed above.  The Applicant has not demonstrated any error of law, procedural unfairness, or irrationality in the Board’s Decision (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142). I am also not satisfied that any such issues exist, bearing in mind the enhanced standard required to uphold the high standard of fairness in the decision-makingprocess (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14).

6.  In the absence of any public law error, the Court’s role in judicial review is not to provide a further avenue of appeal and should not intervene (see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163).

Conclusion

7.  For these reasons, I dismiss the Leave 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