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HCAL 1518/2023
[2025] HKCFI 2412
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1518 OF 2023
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BETWEEN
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Siti Maghfiroh |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
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 for leave 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 and filed on 28 August 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 17 August 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/HCAL001518_2023_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s non-refoulement claim was not made out on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 20 September 2022, which also rejected the applicant’s non-refoulement claim.
Amendments
3. The applicant wrongly named the Non-refoulement Claims Petition Office as one of the putative respondents in Form 86, when only the Board should be so named. The applicant also wrongly named the Board and the Non-refoulement Claims Petition Office as the putative interested parties in Form 86 when the Director should be so named.
4. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.
The applicant’s case
5. 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.
6. In sum, the applicant claimed for non-refoulement protection because she feared being harmed, ill-treated and/or killed by her husband’s creditor if she were refouled to Indonesia, as she was unable to repay the debt of 150 million Indonesian Rupiah to the creditor.
Withdrawal of the Leave Application
7. By her latest affirmation dated and filed on 16 January 2025, the applicant made an ex parte application for leave to withdraw the Leave Application. The applicant stated in the affirmation that she wanted to go back to her home country as soon as possible and so she wanted to withdraw her application for judicial review.
8. 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. It is therefore not necessary for this court to afford her any oral hearing for the Leave Application, even though she had requested one before.
9. 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.”
10. Thus, it is just not right to leave the action at large by granting leave to withdraw to the applicant. This court will proceed to determine the merits of the Leave Application.
Grounds for judicial review
11. 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).
12. The applicant did not provide any ground for judicial review in Form 86, nor in her supporting affirmation dated 28 August 2023. The applicant merely asserted in the affirmation that she did not want to go back to Indonesia because her life was in danger there, and that the loan shark would kill her because she could not repay the debt to the creditor.
Discussion
13. 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).
14. Thus, despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality as aforesaid.
15. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 1 June 2023. The purpose was to allow the applicant a chance to present her case and grounds of appeal to the Board in person so that the Board could conduct a proper inquiry and better understand her situation. The Board found that there was no credible evidence to support her belief that she might be harmed by the creditor if she were refouled to Indonesia, as she never knew who the creditor was and never met him in the past. The applicant was only contacted once by the creditor on phone in around July 2021. Given the lack of reliable information as to both the creditor’s intentions and the existence of the loan, the Board considered her belief of being harmed or killed by the creditor speculative. In any event, apart from verbal threats made against her over the phone, she had never been harmed by the creditor in the past.
16. After due consideration of the law and the evidence of the applicant, the Board found that the applicant failed to establish her claim under any of the applicable grounds.
17. For the availability of state protection and the viability of internal relocation, the Board referred to the then most updated country of origin information (“COI”) from the applicant’s country from different sources. The Board found that reasonable state protection was ready and available to the applicant on her return to Indonesia, and that there was no reason why she could not complain to the police or higher organisations, if required.
18. As to internal relocation, since the Board found that the applicant failed to make out her claim for protection on any of the applicable grounds under the USM, it was not necessary for the Board to deal with this question. Nevertheless, the Board considered that as an able-bodied person with education up to secondary 3 level and many years of work experience as a domestic helper, she could relocate to other parts of Indonesia, such as Jakarta or Surabaya, without undue hardship, and it would further negate the perceived risks of harm from the creditor, which were localized in her home area.
19. The assessment of evidence, COI and risk of harm are primarily within the realm of the Board. This court finds no errors of the Board in reaching its decision based on all the evidence before it. In fact, in view of the applicant’s latest affirmation confirming that she wanted to return to her home country as soon as possible, it seems that it is safe for her to return to Indonesia. Hence, there is absolutely no ground for her to make any non-refoulement claim and there is no prospect of success in the applicant’s intended application for judicial review at all.
20. 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 error 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.
21. 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 a reasonably arguable claim which enjoyed realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
22. For reasons aforesaid, the application for leave to withdraw the Leave Application is refused and the Leave Application is dismissed.
Dated the 2nd day of July 2025
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( Irene LEE )
for Registrar, High Court
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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
Notes for the applicant:
If leave has been granted, the applicant or the applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors
on 2 July 2025
Applicant’s ref. no:
Nil |
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 2 July 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 21012
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 747/22 (Formerly RBCZ 5000643/22)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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