SUHERMINANTI v. TORTURE CLAIMS APPEAL BOARD

HCAL 377/2023

[2025] HKCFI 4599

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 377 OF 2023

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 andoral submissions by the applicant or counsel in open court;

1.      On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.

2.      The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

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

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 13 March 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 6 January 2023 (“the Board's Decision”).  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000377_2023_files/the_Board's_Decision.pdf

2.  The Board found that the applicant was unable to make out her claims for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board rejected the applicant’s claim for non-refoulement protection, dismissed her appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 3 May 2022 (“the Director’s Decision”).

Amendment

3.  The applicant spelt the Board’s name wrong in Form 86.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”.

The applicant’s case

4.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

5.  In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she feared being harmed or killed by her husband, Aldi Muhammad (“Aldi”), as she refused to transfer her land and house to him.

Withdrawal of the Leave Application

6.  On 23 January 2025, the applicant filed an ex parte application by way of an affirmation dated the same date, in which she applied to withdraw her application for judicial review because her problem in her country was solved and she would be safe in her country.

7.  There is no evidence to show that the applicant made the above withdrawal application other than out of her own volition.  With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing of the Leave Application even though she had previously requested one.

8.  However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

9.  Thus, it is right for this court to deal with the Leave Application instead of leaving the action at large.  The applicant’s application to withdraw the Leave Application is therefore refused, and this court will proceed to consider the merits of the Leave Application.

Grounds for judicial review

10.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

11.  The applicant did not advance any ground for her intended judicial review in Form 86.

12.  In her supporting affirmation dated 13 March 2023, the applicant advanced some grounds under the heading “GROUNDS FOR LEAVE”.  However, all the grounds contained therein were directed at the Director.

Discussion

13.  First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as there are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures.  The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549).  Thus, this court will only consider the Leave Application in respect of the Board’s Decision.

14.  As all the grounds asserted by the applicant were directed at the Director, they can simply be ignored.

15.  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 [2018] HKCA 524).

16.  Thus, this court will still scrutinize the Board’s Decision for errors of law, procedural unfairness and irregularity, despite the lack of any valid ground being advanced the applicant in the Leave Application.

17.  In assessing the applicant’s appeal, the Board held an oral hearing on 19 December 2022 and the applicant was present.  Thus, the applicant did have a chance to present her case to the Board in person.

18.  After due consideration of the evidence and the oral testimony of the applicant, the Board concluded that the applicant was not a reliable witness and her version of story regarding the alleged threats or risk of harm was not believable.

19.  The discrepancies in the evidence were too numerous and impossible to be reconciled, rendering the evidence unreliable.  There were inconsistencies as to when her house was finished, the time Aldi reappeared after he left in 2005, and there were two more incidents of threats in 2017 that were never previously mentioned by the applicant.  The Board found the allegation that Aldi had disappeared for so many years and then suddenly appeared again and made unreasonable demand for the transfer of the applicant’s land and house hardly acceptable.

20.  Despite its finding as summarised above, the Board took the applicant’s case at its highest and assessed her case on the basis that her story was true to the extent that the stated threats had been issued towards her.  However, even assuming that the claimed threats from Aldi were true, there was no ground to believe that the applicant would be killed or seriously harmed if she were to return to Indonesia.  The Board did not accept the applicant’s claim that Aldi was waiting for her to return, and would track her down and kill her because of the claimed matters.

21.  The applicant and her family had never availed themselves of the protection from the police or other public authorities in her country.  It was only out of their own volition not to report to the police or other authorities the threats and potential risk that Aldi had made or would make against her.  The treatment she received from Aldi did not attain a minimum level of severity.

22.  The applicant’s problem with Aldi was limited to her local area.  Aldi was not a state-actor and there was nothing to substantiate that Aldi could search for her throughout the country.  It was only a private dispute and did not involve any public official or person acting in an official capacity.  The Board did not accept that the applicant would not be accorded appropriate protection if needed after she returned to Indonesia.

23.  In view of its findings that there was not a real chance that the applicant would be harmed, and if she was, that the protection of the police would be available to her in her home district, the Board was minded that the issue of internal relocation did not arise.  Nevertheless, the Board explicitly stated that if it were necessary for the applicant to get out of the place where she used to live and to keep away from Aldi, she, being in her mid-50’s with some education and 21 years of work experience, could relocate to other places in Indonesia.

24.  Thus, the alleged danger of the applicant and the viability of internal relocation for her had both been considered by the Board.

25.  The finding of facts was solely within the ambit of the Board.  The Board was entitled to come to its own conclusion.  This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

26.  Having rigorously examined the Board’s Decision 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 applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

27.  Moreover, as the applicant had confirmed that her problem in her country was solved and she is safe in her home country, it is clear that she no longer needs non-refoulement protection and the Leave Application serves no practical purpose.

28.  It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (see AW v Director of Immigration and William Lam, CACV 63 of 2015).

29.  Thus, even assuming that there were errors of law, procedural unfairness, or irrationality in the Board’s Decision and the case were remitted to the Board for reconsideration, there would simply be no more basis for the applicant to claim non-refoulement protection as it was no longer unsafe for her to return to her own country.  The Board should assess the risk of the applicant at the time of the proceedings, taking account of information that has come to light to ensure that it is able to make a “full and up-to-date assessment” of the current situation (see Ubamaka Edward Wilson v Secretary for Security and Another (2012) 15 HKCFAR 743).

30.  It is therefore otiose and pointless to grant leave to the applicant to proceed with the intended judicial review, and hence the Leave Application ought to be dismissed.

31.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the intended judicial review has no realistic prospects of success at all, and hence the Leave Application must be dismissed.

Conclusion

32.  For reasons aforesaid, the applicant’s application to withdraw the Leave Application is refused and the Leave Application is 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