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

HCAL 268/2023

[2026] HKCFI 3841

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 268 of 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 24 November 2022 of the Torture Claims Appeal Board (“the Board’s Decision), which dismissed her appeal against the Director’s Decision refusing her non-refoulement claim as mentioned below.

2.  The applicant appeared before the Court on 24 June 2026.

The applicant

3.  The applicant is a national of Indonesia. She is an illegal immigrant. She lodged a non-refoulement claim on the basis that, if refouled, she will be harmed or killed by the money-lender, Supani; her brother, Suroso; and/or her villagers because she had signed a loan agreement for a loan to her brother and she was unable to repay the debt. Also, her relationship with her boyfriend, a Nepalese, giving birth to her daughter, born on 30 August 2008, will disgrace the family and enrage the villagers.    

4.  Details of her claim are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000268_2023_files/the_Board's_Decision.pdf

The Director’s Decision

5.  The Director considered the applicant’s claim in relation to the following risks:

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

b.   risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

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

d.   risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.  By way of Notice of Decision dated 16 September 2021 (“Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

7.  The applicant appealed the Director’s Decision to the Board. On 27 May 2022, the Board conducted an oral hearing for her. The applicant had given evidence and answered the Board’s questions.

8.  Having considered the evidence, the Board made the findings below.

(1)   There were discrepancies in her evidence relating to her ignorance of her indebtedness to the money-lender; her trust in her brother on the one hand, but on the other hand, she said that her brother might have squandered her money remitted to him for the repayment of other debts; her request for protection over 12 years after arriving in Hong Kong; and she wishes to look after her daughter on the one hand, but declines to bring her daughter back to Indonesia where she may receive free education. [37]

(2)   Even if her claim of risk is accepted, it is doubtful if her brother would harm or kill her as she had sent money back to him. The loan was drawn down 16 years ago. It might have been settled. It would be doubtful if the villagers would harm or ill-treat her and her daughter if they return to Indonesia if she takes step to register her marriage with Milan, her boyfriend, in Hong Kong. Furthermore, it is unlikely that the money-lender would look for her and force her to repay the loan since the actual borrower was her brother. [38]

(3)   The money-lender had never threatened her directly and she had never met him. It might be her brother’s exaggerated statement after she stopped remitting money to him. [40]

(4)   There was no evidence that the applicant may not have state protection if she returns to Indonesia, but she does not need state protection as she will not have risk from her brother or the money-lender. [58]

(5)   Internal relocation is viable. [61]

9.  For the above reasons, the Board dismissed her appeal and affirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

10.  The applicant has filed Form 86 dated 22 February 2023 for leave to apply for judicial review of the Board’s Decision.

11.  In support of her application, the applicant has raised the issues below to challenge the Board’s Decision.

(1)   The Board’s Decision is flawed by finding multiple discrepancies in her evidence, and made adverse findings of her credibility, based on speculation and/or wrong facts.

(2)   The adjudicator made unreasonable conclusion with respect to the “remedial effect” of the proposed marriage with her partner.

(3)   The adjudicator conducted an irrational analysis of the risk of harm faced by her as a woman with Muslim beliefs from a predominately Muslim village in Indonesia, who had a sexual relationship and a child out of wedlock.

DISCUSSION

12.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. At the hearing, I asked the applicant if she considered the Board’s Decision was wrong. She answered that the Board was not wrong. However, her daughter is still studying in Hong Kong and her husband is in the elderly care home and he is ill. She further said that her husband is a Hong Kong resident and she is applying for a dependent visa.

14.  After the hearing and before I prepare this Form CALL-1, the applicant submitted to the Court a bundle of documents, which comprise a written submissions prepared by Messrs. Daly & Associates for her application to the Legal Aid Department together with the legal authorities. Her application for legal aid has failed, but she asked this Court to take the written submissions into consideration. I agreed that I will take them into consideration when I assess the case. Now I do.

15.  The written submissions correspond with the issues raised under paragraph 11. They are (1) flawed credibility assessment based on wrong facts; (2) irrational analysis of the risk arising from the loan; and (3) irrational and incomplete analysis of the risk of harm faced by the applicant.

16.  On point (1), the legal submissions state that the Board’s views were based on wrong facts. It denies that there were discrepancies in the applicant’s evidence. I will not deal with the arguments in detail. Suffice it to say, I consider that there was a misconception of the Board’s views. I have set out my understanding of the discrepancies under paragraph 8(1). I consider that the Board was entitled to form its own views on the evidence given by the applicant.

17.  On point (2), the applicant submits that the credibility assessment was based on its own assumptions and speculations. She refers to the case of Taizul Islam [2020] HKCFI 640 to say that a decision-maker is not entitled to make decisions based on his [their] “common-sense”. A decision-maker should not impugn an applicant’s credibility based on some vague sense of implausibility or the testimony given.

18.  I do not agree that the Board’s views are based on some vague sense of implausibility, still less on speculation. I agree that the Board’s views were made on common-sense. The applicant misunderstands the meaning of “common-sense’ within the context of the cases under their various circumstances.

19.  The Court of Appeal in ST v Betty Kwan, the Secretary for Security and the Director of Immigration [2014] 4 HKLRD 277 held:

“43. … … where the material placed before the adjudicator calls for some further probing, questioning or inquiry as a matter of fairness. … What is “common” sense in Hong Kong could be “uncommon” sense in another place, and vice versa….”

The Court of Appeal of the above case has raised caution when the Board considers applying common sense to foreign situations or circumstances such as cultural difference, custom, habits or ideologies, which may be different from the local situations or circumstances. It does not mean that the Board should not use common sense for the assessment of the evidence. This is simply not practicable because common sense forms the foundation of one’s reasoning.

20.  Upon my review of the Board’s Decision, the Board came to its views after considering the applicant’s evidence before it. The adjudicator had applied her common sense to the factual circumstances of the case. In my view, she was entitled to do so for the assessment of the applicant’s credibility.

21.  As to point (3), the applicant submits that it was irrational for the Board to suggest registering her union with Milan in Hong Kong, which would give her and her daughter a legitimate status. This suggestion was in response to the applicant’s fear that her daughter was born out of wedlock, which will enrage her family and the villagers. The applicant further raised the issue of discrimination of inter-faith marriage in Indonesia. It seems that the Board did not deal with this issue by reference to the country-of-origin information. However, I do not think this will give the applicant a realistic prospect of success in her intended application for judicial review of the Board’s Decision because the Board had considered internal relocation in her case.

22.  The Board had considered internal relocation as this is a localized issue. The Board held that it is unlikely that the applicant would return to live at her home village since her family has moved out of the village. [51] The Board further held that the applicant has an open option to relocate to anywhere in Indonesia if she returns to Indonesia, particularly in one of the larger cities in Indonesia. [61]

23.  In the written submissions, the applicant did not dispute the Board’s finding of internal relocation.

24.  The Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, held:

“32. Fourthly, the question of internal relocation (otherwise known as “internal flight”). This is a concept common to refugee law and torture claims. The rationale is simple: if the risk of persecution or torture is a localised one, and it is not unreasonable or unsafe for the refugee or claimant to relocate to another part of the country in question (the “internal relocation alternative”), there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT.”

25.  Therefore, the applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

26.  I refuse to grant leave to the applicant to apply for judicial review of the Bord’s Decision. Accordingly, I dismiss her application.

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