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

HCAL 2562/2019

[2025] HKCFI 2191

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2562 of 2019

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 oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Madam Yulianti (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 12 June 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 26 September 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the Claim

2.  The Applicant is an Indonesian born on 3 March 1983 in Banyunas, Jateng, Indonesia.  She received 12 years of education and had 6 years of work experience.

3.  The Applicant claimed that her father’s creditor in Indonesia (“Creditor”) would harm her because of outstanding debts.  She claimed that in 2008, her father borrowed 20 million Indonesian Rupiahs from the village secretary (i.e. the Creditor) to open a small canteen.  He later borrowed another 80 million Indonesian Rupiahs from the Creditor when the Applicant’s grandmother fell ill (together “Loans”).  Her father named her as the guarantor of the Loans and the Loans were due within 5 years.

4.  The Applicant’s father used all the money from the Loans to treat her grandmother and did not open a canteen as originally planned. 

5.  The Applicant last came to work in Hong Kong as foreign domestic helper in April 2010.  Her employment contract was terminated prematurely on 25 October 2010 and she had been overstaying in Hong Kong since 9 November 2010.

6.  When she was still working as a foreign domestic helper, she had sent money to her family once in 2010.  The Applicant’s family had no means to repay the Loans after she lost her job in Hong Kong.

7.  About six months later, the Creditor started coming to the Applicant’s home in Indonesia about once every two months.  The Creditor and his men beat her father up with wooden sticks and they threatened to burn down their house and kill the Applicant if the Loans were not paid back.  The Creditor called the Applicant once in around 2009 or 2010 to threaten her.  She did not hear from the Creditor after she changed her number and she never met the Creditor. 

8.  The Applicant was arrested by police on 10 December 2010.  She raised a torture claim which was rejected by the Director on 30 October 2012.  By a supplementary non-refoulement claim form dated 27 August 2018 (“SCF”) the Applicant lodged her non-refoulement claim.  The Applicant requested that her previous torture claim be considered together with her non-refoulement claim (together became the Claim) to which the Director agreed.

9.  The Applicant claimed that if she were returned to Indonesia, she would be harmed or killed by the Creditor and his associates because she and her father were unable to repay the Loans.

10.  The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”):

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

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

11.  By the DOI Decision, the Director refused the Claim.  The Applicant later filed an appeal/petition to the Board (“Appeal”).  By the Board’s Decision, the Board affirmed the DOI Decision.  The Board rejected and dismissed the Appeal.

12.  On 3 September 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review.  In the Form 86, the Applicant named both the Director and the Board as the proposed respondents without specifying the subject decision for her application.  She put the date of the DOI Decision in the box for description of the interested party and marked “N/A” in the box at the same time.  In the Supporting Affirmation filed on the same day (“Supporting Affirmation”), the Applicant stated that she was not satisfied with the decision of the Immigration Department but exhibited the Board’s Decision.  At the court hearing held on 28 March 2025 (“Court Hearing”), I confirmed with the Applicant that she intended to seek judicial review of the Board’s Decision in this application.

13.  In any event, the Applicant had appealed against the DOI Decision to the Board.  The Court of Appeal pointed out in Re Ali Usman [2018] HKCA 955 at §21 that “this court has on many occasions held that as the decision of the Director is capable of being appealed by appeal/petition process, where that process has been invoked (as it was here), there is no scope for review of the Director’s Decision”.  The same applies to this case.  For the sake of clarity and good order, I dismiss the Applicant’s application for judicial review against the Director and/or the DOI Decision and proceed on the basis that this is her application for leave for judicial review of the Board’s Decision.

Legal principles applicable to judicial review

14.  In a judicial review, the court does not step into the shoes of the decision makers.

15.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI [i.e. country of origin information] 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: 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.”

16.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

17.  In the Form 86, the Applicant did not put forward any ground for her intended judicial review.  She only wrote: “my life still danger in my country and I have a small baby which the father is HK resident.  He will not like me to bring back my baby home”.

18.  In the Supporting Affirmation, the Applicant deposed that:

“I am not satisfied with the decision of immigration department because my life still in danger in my country and now I have a small baby which the father is HK resident and he will not like me to bring my baby back home”

19.  The Applicant testified at the hearing of the Appeal before the Board. In §§34-66, 69, 71-73, 78 and 81-87 of the Board’s Decision, the Board discussed in some details the evidence given by the Applicant at different stages of her non-refoulement claim proceedings and the concerns of the Board. 

20.  The Board found that the Applicant was often vague about details in providing information in response to the Board’s questions about aspects of her claims.  The Board also found that there were some inconsistencies between her written claims in the SCF and her oral evidence to the Board about aspects of her claims.

21.  For reasons set out in §§93-94 of the Board’s Decision, the Board considered that the Applicant had exaggerated the physical assault on her father and number of threatening call received by her.  The Board believed that the Applicant exaggerated these claims in an effort to strengthen her protection application.

22.  The Board after considering the totality of the claims and its assessment of the totality of the available evidence and information, did not accept that the Applicant was a credible witness or that aspects of her claims were credible.

23.  The Board, after considering the relevant country of origin information (“COI”) materials, formed the view that if the Applicant returned to Indonesia and faced harm on the basis of her claims, there would be a reasonable level of state protection available to her.  The Board was of the further view that it would be reasonable for the Applicant to relocate to places such as Jakarta or Surabaya or Bali if she returned to Indonesia and faced harm from the Creditor. (§§76-77 of the Board’s Decision)

24.  As pointed out in the Nupur Mst (supra) case, assessment of evidence, COI materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board.  The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.

25.  In disputing the Board's assessment on evidence, credibility and risk of harm, the Applicant sought to challenge the findings of fact of the Board which is not permissible in a judicial review unless in making such findings there were errors of law or procedural unfairness or irrationality.  I find none in this case.

26.  At the Court Hearing, the Applicant was unable to identify any error of law, procedural unfairness or irrationality in the Board’s Decision.  She only repeated what she had stated in the Supporting Affirmation.  She stated that she wanted to stay in Hong Kong to take care of her son who is a Hong Kong resident.  However, this is no ground for seeking non-refoulement protection or judicial review of the Board’s Decision.

27.  No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affirmation.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way the Board’s Decision was unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how the Board took into account irrelevant matters or fail to take into account relevant matters.

28.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the relevant grounds for seeking non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

29.  Because of its assessment of the Applicant’s credibility and the credibility of aspects of her claims and on its assessment of the available evidence and information, the Board did not accept the Applicant’s claims that she could not return to Indonesia because she feared harm from the Creditor on the basis of her claims.  The Board also did not accept the Applicant’s claims that her family borrowed money from the Creditor and that the Creditor had threatened to harm her and her family in relation to the repayment of the Loans.  The Board did not accept that the Applicant’s father was harmed by the Creditor or that the Creditor had threatened to burn down her family home in Indonesia in relation to repayment of the Loans.

30.  In §§99-115 of the Board’s Decision, the Board assessed the Claim under each of the applicable grounds under the USM.  The Board found that there were no substantial grounds to believe that the Applicant faced a real risk of being subjected to the torture risk or the BOR 3 risk if she returned to Indonesia. The evidence and information did not indicate or suggest that she faced a real risk of harm on the basis of the acquiescence of any public official or anyone acting in an official capacity in Indonesia.  The Board did not accept that the Applicant had a well-founded fear of the persecution risk.  The Board also found that there were no grounds to believe that the Applicant faced the BOR 2 risk.

31.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection.  These were findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality.  In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings for the Claim.  The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

32.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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