SITI-MASSUDAH v. TORTURE CLAIMS APPEAL BOARD

HCAL 207/2023

[2025] HKCFI 4985

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 207 OF 2023

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral 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” and the name of the putative interested party be amended to “Director of Immigration”.

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

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

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated 9 February 2023 and filed on 13 February 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 9 December 2022 (“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/HCAL000207_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 her appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 13 September 2022.

Amendments

3.  In Form 86, the applicant named “TORTURE CLAIMS APPEALS BOARD/ NON-REFOULEMENT CLAIMS OFFICE” as both the putative respondent and the putative interested party, when only the Board should be the putative respondent and the Director should be the putative interested party.

4.  The Non-refoulement Claims Petition Office should not be named as a party at all, as it is just an office providing administrative and secretariat support to the adjudicators of the Board.

5.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

6.  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.

7.  In sum, the applicant claimed for non-refoulement protection because she feared that, if refouled to Indonesia, she would be harmed or killed by a local loan shark/moneylender named Suyono, as her mother had borrowed money from Suyono prior to 1993 and was unable to repay the money to him. Suyono had threatened to have the applicant married his mentally disabled son in the event of non-repayment.

Withdrawal of the Leave Application

8.  By way of a letter dated 17 June 2025, the Director notified this court that the applicant wrote a letter dated 17 June 2025 to withdraw the Leave Application. In the applicant’s said letter, the applicant stated that:-

“I SITI MASSUDAH, would Like to withdraw my Judical Review under ReF HCAL 207/2023 Relating to my non RefouLement claim in Hong Kong. I want to Return to home country as soon as possible.”

9.  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 for the Leave Application even though she had previously requested one.

10.  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.”

11.  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

12.  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).

13.  The applicant advanced some grounds for the intended judicial review by annexing a document titled “APPLICANT’S GROUNDS OF APPLICATION FORM 86” to her Form 86. The grounds for her intended judicial review were stated in paragraphs 3 and 4 of that document, which can be summarised as follows:-

(1)  The Board wrongly considered that the applicant was not personally at risk because she had not been physically attacked or injured.

(2)  The Board failed to consider the element of mental suffering and the threats towards the applicant had caused her great stress and distress.

(3)  The Board unreasonably failed to consider the threat of forced marriage.

(4)  The Board failed to sufficiently consider the available COI, which indicated that the threat of forced marriage was a pervasive and serious problem in Indonesia and received inadequate attention from the state, and unreasonably found that internal relocation was available to her.

(5)  The Board was wrong to state that there was no current risk to the applicant.

(6)  The Board unreasonably concluded that State Protection was adequate and available.

Discussion

14.  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).

15.  Thus, the applicant cannot challenge the Board’s finding of facts unless there were errors of law, procedural unfairness or irrationality in the Board’s Decision. Grounds (1), (4), (5) and (6) as stated above are direct challenges of the Board’s finding of facts, which are not permissible in a judicial review unless the findings were irrational. The applicant also failed to state which piece(s) of country of origin information (“COI”) that the Board failed to sufficiently consider.

16.  The Board found that there was no, or no reliable evidence to show (and the Board did not accept) the following:-

(1)  Suyono would harm or kill the applicant if she were to return to Indonesia now;

(2)  The applicant faced risk throughout Indonesia;

(3)  The applicant suffered injuries to the required severity; and

(4)  The state of Indonesia was unwilling to help the applicant for a Convention reason.

17.  The Board gave detailed reasons for the findings above. In particular, contrary to the applicant’s assertion that the Board unreasonably concluded that state protection was adequate and available, this court notes that the Board had discussed and considered the availability of state protection extensively in paragraphs 59-66 of the Board’s Decision. Significantly, this courts notes from paragraph 66 of the Board’s Decision that the applicant herself accepted that she could turn to the organisations listed in paragraph 63-65 of the Board’s Decision for assistance, if needed.

18.  This court finds the reasons given by the Board sufficient and not irrational.

19.  As to grounds (2) and (3) as mentioned above, the Board accepted that Suyono had threatened the applicant and her mother in the past in relation to the loan, and that the applicant subjectively feared further harm (or worse) from Suyono should she be refouled to Indonesia. The Board also considered that there would be sufficient police or other state protection available to the applicant. Thus, the Board had not failed to consider the applicant’s mental suffering and the threats she received, including the threat of forced marriage.

20.  This court finds that none of the grounds asserted by the applicant amount to valid grounds to challenge the Board’s Decision.

21.  Despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

22.  The applicant was afforded an oral hearing before the Board on 29 November 2022 and the applicant was present. Thus, the applicant did have the opportunity to present her case to the Board in person.

23.  The Board found that the applicant had failed to depart Hong Kong after the termination of her foreign domestic helper contract for several years and her failure to take advantage of all opportunities she had to claim protection was behaviour that was detrimental to her credibility.

24.  On the evidence, the Board found that Suyono was a non-state actor in respect of the applicant’s situation. The applicant had not returned to Indonesia since she travelled to Hong Kong in October 2009. There was no evidence of any current risk to the applicant. Even if Suyono were still a threat to her, there was no suggestion, from objective COI, that police or other state protection would be either inaccessible or unavailable. The Board considered there would be sufficient protection available to the applicant if she were refouled to Indonesia.

25.  The Board also found nothing to show that the applicant would personally be at risk of being deprived of life if refouled. The applicant had only once been assaulted to a minor degree in 2009. The injuries or sufferings did not reach the high threshold as set out in Ubamaka[1].

26.  The applicant’s case was a case arising from her mother’s loan from Suyono since more than 30 years ago and thus was a personal financial dispute. There was no Convention reason for the applicant’s ill-treatment (if any). The issue of state acquiescence or failure of due diligence did not arise in the circumstances of the applicant’s case. The applicant had also failed to satisfy the elements of torture as defined in section 37U of the Immigration Ordinance.

27.  In view of the Board’s findings as summarized above, the Board found the applicant’s claim failed on all the applicable grounds under the USM.

28.  Despite its conclusion, the Board did go on to consider the viability of internal relocation for the applicant.

29.  The Board found that the applicant, being an able-bodied mature woman educated to high school level with around 5 years’ work experience as a foreign domestic helper in Hong Kong, could relocate to cities such as Jakarta and Surabaya without undue hardship. She had not experienced any impediment in either places. Moreover, these cities were also sufficiently distant from her home area and the remote chance of Suyono being able to locate her would be further reduced.

30.  The assessment of evidence, COI materials and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

31.  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.

32.  Thus, there is no merits in the Leave Application at all.

33.  Moreover, as the applicant had confirmed by way of her letter dated 17 June 2025 that she wanted to withdraw her judicial review and return to her home country as soon as possible, it is clear that she no longer needs non-refoulement protection and the Leave Application serves no practical purpose.

34.  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

35.  For reasons aforesaid, the 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