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

HCAL 2303/2020

[2025] HKCFI 907

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2303 of 2020

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.

Observation for the Applicant:

Introduction

1.  This is an application by Madam Ika Ernawati (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 13 April 2017 (mistakenly referred to as dated 13 April 2018 in the Form 86 filed herein (“Form 86”)) (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 2 December 2016 (“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 6 June 1985. She received education for 11 to 12 years, up to the level of high school. She worked as domestic helper in Taiwan from 2004 to 2008 and in Hong Kong from 2009 to 2012. From 2008 to 2009, she worked for his family groceries business in her village.

3.  The Applicant claimed that in early 2009, she borrowed 300 million Indonesian rupiah at a monthly interest of 40% with repayment of the principal in 3 years (“Loan”) from a loan shark and gangster (“Creditor”) in her district for medical expenses of her father. The Applicant gave her house in her village to the Creditor as collateral.

4.  To repay the Loan and the interest, the Applicant came to work in Hong Kong in July 2009. Since late 2010, the Applicant was unable to repay the Creditor as she had to pay for her sibling’s tuition fee.

5.  The Creditor would come to her house with followers to threaten her family that if her family could not repay him, he would abduct the Applicant’s sister.

6.  In early 2011, the Creditor took possession of the Applicant’s house. He said that the collateral was not enough to offset the Loan but did not mention the amount of shortfalls.

7.  When the Applicant returned to Indonesia for vacation in around August 2012, the Creditor located her in her aunt’s place. He assaulted her and threatened to kill her if she could not repay the Loan. The Applicant’s mother was also hurt. Their injuries were not serious. They did not seek medical assistance and did not report to the police. The Applicant recovered in about 1 week.

8.  After the Applicant returned to Hong Kong, the Creditor would call her 3 to 4 times a day urging her to repay the Loan and threatening to kill her if she could not do so. The Creditor would even call the home number of her employer causing nuisance to her employer. Her employment was thus terminated in December 2012.

9.  The Applicant changed her phone number in early 2013 but the Creditor still found her via her Facebook account and sent threatening messages to her. The Applicant had to deactivate her Facebook account.

10.  The Applicant was told by her family members that the Creditor kept looking for the Applicant and her family members in Indonesia.

11.  The Applicant claimed that the Creditor would harm or kill her upon her return to Indonesia because of the outstanding Loan.

12.  The Applicant last arrived in Hong Kong on 30 August 2012 on the strength of her Indonesian passport. She was permitted to stay in Hong Kong for employment until 13 July 2013 or 2 weeks after termination of her employment. Her employment was terminated on 24 December 2012 but she did not leave Hong Kong within the prescribed time and overstayed in Hong Kong.

13.  The Applicant was arrested by the police on 15 October 2015. She lodged the Claim in November 2015 but absconded from reporting recognizance since 25 January 2016. She was arrested by the police again on 8 August 2016. She lodged the Claim again in August 2016.

14.  The Director assessed the Claim on all the applicable grounds under the unified screening mechanism (“USM”), namely:

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

(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”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR; 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 (“Refugees Convention”).

15.  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.

16.  On 23 November 2020, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the decision dated 13 April 2018 of the Board. The Director advised the court that the Board had only issued one decision dated 13 April 2017 (instead of 2018) (i.e. the Board’s Decision) in the Applicant’s case, I am satisfied that this was only a typo in the Form 86 and the subject decision for this intended judicial review of the Applicant is the Board’s Decision. The Applicant filed her supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Board as the proposed respondent.

Legal principles applicable to judicial review

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

18.  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.”

19.  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

20.  The Applicant filed the Form 86 on 23 November 2020.

21.  Order 53 rule 4(1) of the Rules of the High Court provides that:

“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

22.  The Board’s Decision was issued on 13 April 2017 (mistakenly referred to as dated 13 April 2018 in the Form 86) (See §16 above). As such, the Applicant should have filed the Form 86 latest on 13 July 2017. The Form 86 was filed on 23 November 2020. It was late irrespective of whether the Board’s Decision was issued in 2017 or 2018.

23.  The Applicant was late for more than 2 years and 4 months (or 1 year and 4 months if the Board’s Decision was issued in 2018) in filing the Form 86. This is a very substantial and inordinate delay. The Applicant has not applied for time extension to file the Form 86. No explanation had been provided by the Applicant in the Supporting Affirmation for her late filing of the Form 86. The Applicant attended the court hearing of 4 February 2025 (“Court Hearing”) and explained that the reason for her late filing of the Form 86 was because she did not know the court procedure for judicial review.

24.  In the Po Fun Chan case (supra), Litton NPJ opined at §52 of the judgment that where an application was made many months after the time limit mentioned in order 53 rule 4 of the RHC, the judge was entitled to refuse leave, however strong the complaint might otherwise be. Ignorance of law or rules is generally not an acceptable explanation for delay in taking out court proceedings. As such, this application of the Applicant for leave to apply for judicial review is liable for dismissal on the ground of delay.

25.  For the sake of good order and completeness, I shall also consider the merits of the Applicant’s application before deciding on how to dispose of the matter.

26.  In the Form 86, the Applicant did not put forward any ground for her intended judicial review.

27.  In the Supporting Affirmation, the Applicant claimed that she faced genuine and serious problems in her home country, which prompted her to escape from her home country and to seek asylum in Hong Kong.

28.  The Applicant claimed that: “I am unable to find any place to stay safely in his [sic] country.” (§5(a) of the Supporting Affirmation)

29.  As pointed out in the Nupur Mst case (supra), assessment of evidence, country of origin information (“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.

30.  In disputing the findings on assessment on evidence, risk of harm, and viability of internal relocation, the Applicant seeks 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.

31.  The Applicant contended that the Director rejected the Claim without a proper inquiry into her situation and that the Director failed to carefully understand her situation or appreciate the real danger she faced upon her return.

32.  The Director had in the 16-page DOI Decision set out his detailed analysis of the Claim, the COI materials considered and the reasons for his decision. The Applicant had not specified how the Director had rejected her claim “without any proper inquiry and without carefully understanding my situation.” (§5(b) of the Supporting Affirmation)

33.  The Applicant further stated that: “To understand my claim fairly, my immigration officers are invited to tour my country and ask those familiar with his [sic] case what real danger I would face if I am returned there.” (§5(b) of the Supporting Affirmation)

34.  There is no legal or legislative basis to require the Director or the Board to actually visit the risk state or country of origin to conduct investigation of a non-refoulement claim. While the inquiry was one of joint endeavor, the burden was on the Applicant to prove her claim (ST v Betty Kwan and ors (CACV 115/2013, 26 June 2014)) The Director and the Board should have conducted proper enquiries into current and relevant COI as regard her home country in their assessment and determination of her claims which the Director and the Board had done in this case.

35.  In any event, this is an application for leave for judicial review of the Board’s Decision (not the DOI Decision). As the Board pointed out in §6 of the Board’s Decision, the Board had to conduct a rehearing of the Claim on all the applicable grounds and make its own findings of fact and decision. Errors (if any) of the Director made in the DOI Decision will not constitute grounds for judicial review of the Board’s Decision.

36.  The grounds put forward in the Supporting Affirmation for the Applicant’s proposed judicial review are not reasonably arguable.

37.  In the Court Hearing, the Applicant confirmed that she was unable to identify any error of law, procedural unfairness or irrationality in the Board’s Decision. She only reiterated that her life would still be in danger if she were to return to Indonesia.

38.  The Board accepted the Applicant’s case that her family had been harassed and threatened by the Creditor in the past. However, it did not accept that the Creditor intended to cause her serious harm or kill her. It also found that internal relocation would be viable to the Applicant and there was nothing to show that state protection would not be available to her in Indonesia.

39.  The Applicant had sent a letter submissions dated 16 January 2025 (“Letter”) to the court. In the Letter, the Applicant only reiterated that it was still danger for her to return to Indonesia as the Creditor was still chasing after her and she wanted to stay in Hong Kong.

40.  At the Court Hearing, the Applicant said that her sister was raped by the loan shark in 2023 (“Incident”). This is new evidence but bare assertion without particulars or other supporting evidence. The Applicant adduced no evidence to suggest that the alleged Incident was related to the Loan. The Applicant had not even mentioned the Incident in the Letter which was written by her in January 2025.

41.  As pointed out by the Court of Appeal in Kwok Hay Kwong v Medical Council of Hong Kong [2007] 3 HKLRD 213 at 219 that the conditions in Ladd v Marshall [1954] 1 WLR 1489 on the admission of fresh evidence on appeal were equally applicable to judicial review. The conditions were: (a) that the evidence could not have been obtained with reasonable diligence for use at the hearing; (b) the evidence was such that it would probably have an important influence on the result of the case; and (c) the evidence had to be apparently credible.

42.  For reasons stated in §40 above, I do not find such new evidence apparently credible or will probably have an important influence on the result of the case. Thus, two of the requirements of Ladd v Marshall are not satisfied and it will not be admitted as evidence in this intended judicial review.

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

44.  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 under the USM for seeking non-refoulement protection; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

45.  The Board did not accept that there was real risk or that the Applicant would be subjected to the risk of “persecution”, “torture” or “other cruel, inhuman, or degrading treatment or punishment”. The degree of actual violence inflicted on the Applicant did not reach the level of severity required for non-refoulement protection. The Board also did not accept the Applicant’s claim that her life was in danger. The Board found that the Applicant’s case did not show any link with any of the reasons referred to in Article 33 of the Refugees Convention or any involvement / acquiescence of public officials. The Applicant had also failed to show the unavailability of reasonable sate protection at home. The Board considered that internal relocation was viable and reasonable to the Applicant.

46.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection. These are 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. 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

47.  The Form 86 was filed out of time without leave of the court nor with good explanation 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