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

HCAL 751/2025

[2025] HKCFI 2914

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 751 of 2025

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;

1.   Extension of time to file the application for leave to apply for Judicial Review (“Form 86”) be refused; and

2.   Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 25 March 2025 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 30 August 2024 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision (the “Notice”), refusing her application for non-refoulement protection. 

Explanation for the late application

2.  The leave application was filed 6 months and 25 days after the date of the Decision sought to be reviewed.  Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was lodged three months and 25 days out of time.

3.  In AW and Director of Immigration and William Lam CACV 63/2015 (unreported) 3 November 2015, the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two.  Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors.  However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ. The delay in this case is so substantial that leave may be refused on this ground alone without considering the merits of the substantive application, unless the Applicant has a reasonable and credible explanation for the delay.

4.  Despite clear warning in the Form 86 that an applicant is required to state his grounds for application and reasons for delay, if any, the Applicant provided neither.  Even on the Applicant’s own case, her claim is devoid of merits.  Thus, instead of exploring the reasons for the delay with her, the Court considered it more expedient to err on the side of generosity and investigate the merits of her leave application.

Background

5.  The Applicant is an Indonesian national.  She last arrived in Hong Kong on 23 November 2019 to take up employment as a foreign domestic helper.  She overstayed since 3 December 2022.  She was arrested on 24 October 2023 and raised a non-refoulement claim by written signification on 28 October 2023. In due course, her claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk^[1]; BOR 3 Risk^[2]; Persecution Risk^[3]; and BOR 2 Risk^[4]. Her application was rejected by the Director’s Notice.  Her appeal against the Notice was dismissed by the Board’s Decision.  She now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

6.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer.  In gist, she claims that she will be harmed or killed by her husband, if returned to Indonesia, because she refused to give him documents relating to her land (the “Land”); but in her appeal before the Board, she changed the basis of her claim to one of fear of disownment and of being killed by her family for refusing to re-convert back to Islam after having changed her religious faith to Islam from Christianity while in Hong Kong.

7.  The Applicant, now aged 50, is married with one daughter.  She married her husband about 25 years ago.  Her husband was a construction worker.  He was short-tempered and had slapped her with bare hands or sticks over trivial matters.  She first came to work as a foreign domestic helper in 2003.  She used to return to Indonesia for holiday once every two years.  She used to remit a lot of money to her husband.  She never asked him how the money was used.  She knew her husband had used some of the money to buy land, houses and motor cars.  She used to talk to her husband occasionally, but he stopped calling her since 2022.

8.  The Applicant had bought the Land in her home village about five years ago.  She passed the document relating to the Land to her brother for safekeeping.  Her husband did not know of the arrangement. 

9.  In around 2022, her daughter informed her that her husband had brought a woman home, had sold two pieces of land, three motor cars and three motorcycles.  The Applicant became very angry and stopped remitting money to her husband.  She also blocked his telephone number.  She cut off contact with her husband.  Since then, she and her husband communicated with each other through their daughter.  She last had contact with her daughter in September 2023.

10.  Since 2022, her husband had asked the Applicant through their daughter at least five to six times for the Land documents, but the Applicant refused.  In 2023, he threatened three times to kill her if she dared to return to Indonesia. She does not believe she would receive adequate protection in Indonesia because the authorities are corrupt.  She thinks internal relocation is not possible because her husband used to hang out with gangsters in his village, but she is unsure whether he has the connection to locate her.

11.  On appeal, the Applicant advanced a different basis of claim.  In her Notice of Appeal, she changed the basis of her claim to her fear of disownment by her family because she refused to convert from Islam to Christianity.  At the hearing before the Board, she confirmed that she no longer relied on the basis of her claim as stated in her NCF.  She also raised for the first time that her brother had threatened to murder her five years ago after she refused to change her religion, but he had passed away at the time she lodged her NCF.  

The finding of the Board

12.  The Applicant testified before the Board.  The Board noted her change of the basis of her claim.  She confirmed she no longer relied on her case as advanced in her NCF and raised for the first time her brother’s threat to kill her five years ago.  She explained that she had been advised by her lawyer that her case in the NCF was not strong enough and it was her lawyer who asked her to lodge an appeal, but she provided the grounds of appeal.  She said her brother had passed away at the time of the NCF. 

13.  The Board found significant and multiple inconsistencies and contradictions in the Applicant’s evidence before the Board, in respect of which she was unable to give a satisfactory explanation.  It found her delay in seeking protection based on her brother’s death threat allegedly made five years ago inconsistent with her alleged fear of being harmed. It also found it implausible that if her brother had threatened to murder her she would have failed to mention it her Notice of Appeal.  Furthermore, as her brother had passed away at the time of her filing the NCF, the risk of harm had been extinguished and is now non-existent.  The Board considered the above finding sufficient to dismiss the Applicant’s appeal.  Nevertheless, it further assessed her claim on the basis of her evidence and independent and credible country of origin information (the “COI”).

14.  In respect of Persecution Risk ground, the Board found that the problem between the Applicant and her brother was simply a private, family dispute over her religion; that no state authority was involved and that the ill-treatment she experienced fell short of the minimum level of severity.  The Applicant also confirmed that none of her family members had ever belonged to or been associated with any organisations or groups in Indonesia that is relevant to her claim.  On the basis of the COI, the Board also considered adequate state protection is available.  It concluded her fear of persecution by her brother was hardly well-founded (not to mention the risk had already extinguished with the death of her brother).

15.  For like reasons, the Board found the ill-treatment the Applicant claimed to have faced and will face on her return to Indonesia did not attain the requisite minimum level of severity for the purpose of establishing Torture Risk ground or the high threshold for the purpose of establishing BOR 3 Risk ground.

16.  Lastly, it found BOR 2 Risk ground was not engaged.

17.  For the above reasons, the Board dismissed her appeal.

Legal principles applicable to judicial review

18.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

19.  The Applicant did not advance any grounds of judicial review in her Form 86.  In her supporting affirmation dated 25 March 2025, she annexed a letter in which she pleaded the Court not to return her to Indonesia.  She reverted to the original basis of her claim in the NCF, ie her fear of being harmed or killed by her husband.  In another letter received by the Court on 14 April 2025, she repeated her fear of harm from her husband.  She had abandoned this basis of her claim before the Board.  Her fear of harm from her husband was not an issue considered by the Board and could not form the basis for review of the Board’s Decision.

20.  At the hearing, after the legal principles in the above section had been explained to her, she confirmed that she had no complaint about error of law, procedural unfairness and irrationality.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, ie error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

Overall scrutiny

21.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

22.  The Applicant changed the basis of her claim in her Notice of Appeal to the Board.  She confirmed her change of case at the hearing before the Board and advanced new evidence in support of her new case.  The Board considered her new evidence.  It had concerns in numerous significant inconsistencies and implausibilities in her evidence which she was unable to explain to the Board’s satisfaction.  Though the Board considered she had failed to prove the factual basis in support of her new case, it did not dismiss her claim but assessed it on the basis of the new case as she alleged and against the COI.  It was on the basis of her account of events that the Board made further finding that her dispute with her brother was a private dispute; that the ill-treatment she received did not attain the minimum level of severity or high threshold required; and that adequate state protection will be available to protect her from harm on her return to Indonesia.  Then, applying the law applicable to non-refoulement protection to those facts, it found she had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds under the USM.  These are mixed finding of facts and of the law.  Insofar as they are finding of the law, the Board is absolutely correct.  Insofar as they are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.  The proposed judicial review has no realistic prospect of success.

Conclusion

23.  Even on the Applicant's own case, her leave application has no prospect of success.  In the circumstances, leave to file the Form 86 out of time is refused.  Her application for leave to apply for judicial review of the Board's Decision is therefore refused.

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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap. 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap. 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383

[5] [2018] HKCA 524 at [14(1)]