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

HCAL 258/2025

[2025] HKCFI 2810

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 258 of 2025

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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Madam Suyati (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 29 September 2023 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 30 March 2023 (“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.  She was born on 19 October 1990 in Purworejo, Jawa Tengah, Indonesia.  She received about 9 years of education and had about 7 years of work experience.

3.  The Applicant claimed that her husband (“Husband”) would harm or kill her.  She claimed that Husband borrowed IDR 50 million from his creditor (“Creditor”) in February 2015 at a monthly interest rate of 20% and he had to pay back the principal within 6 months (“Loan”).

4.  Husband failed to pay back the Loan and he asked the Applicant to either give him money or marry the Creditor as repayment.  He told the Applicant that the Creditor would kill him if he failed to pay back the Loan but he would kill the Applicant before he died.  He attacked the Applicant on several occasions and even threatened her with a long knife on around 9 May 2017.  She was very frightened and told him she would consider marrying the Creditor.

5.  The Applicant took up training as a domestic helper towards the end of July 2017 and came to Hong Kong to work in December 2017.  She sent IDR 15 million and IDR 20 million to Husband in 2019.  However, she could not reach Husband after then and her mother-in-law informed her that the Creditor was still demanding repayment of the Loan.  She claimed that she faced risks of harm from Husband and the Creditor regarding the outstanding Loan if she returned to Indonesia.

6.  The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”):

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

(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” and “BOR 2”);

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

7.  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.

8.  On 22 January 2025, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of 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 and the Director as the interested party.

9.  When the Applicant filed the Form 86, she expressly stated in writing that she did not request an oral hearing for her application for leave for judicial review.  As such, I proceed to deal with this application by way of paper disposal.

Legal principles applicable to judicial review

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

11.  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.”

12.  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

13.  Order 53 rule 4(1) of the Rules of the High Court (“RHC”) 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.”

14.  The Board’s Decision was issued on 29 September 2023.  The Applicant should have filed the Form 86 latest on 29 December 2023.  The Form 86 was filed on 22 January 2025.  The Applicant was late for more than 1 year to seek judicial review of the Board’s Decision.  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 Form 86 or the Supporting Affirmation for her late filing of the Form 86. 

15.  In Po Fun Chan case (supra), Litton NPJ opined at §52 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.  As such, the Applicant’s applications for leave to apply for judicial review of the Board’s Decision is liable for dismissal on the ground of delay.

16.  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.

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

18.  In the Supporting Affirmation, the Applicant exhibited the Board’s Decision and wrote: “…my life is danger in my country Indonesia life protection under non-refoulement claim”

19.  By a letter dated 18 March 2025 (“Letter”) the Applicant made the following submissions:

“I Don’t want go Back Indonesia, Because my life very Danger, Because of My Husband will Kill me, Because I Can’t pay his Debt. I Don’t Have money to pay The Debt and Now He knows I’m lesbian in Hong Kong. I’m also scared about my Family Because I’m a lesbian in Hong Kong. In Indonesia the people are a lesbian they don’t Like it. Because our religions is moeslim [sic] and moeslim [sic] country. So Apologise I Hope you Consider my Life. Please save My Life, please give me Live in Hong Kong, Because only in Hong Kong I Feel savety [sic].”

20.  The Applicant submitted that she faced proscribed risks of harm in Indonesia for being a lesbian.  This was a bare assertion not previously raised before the Director or the Board.  This bare assertion lacked details and there was no credible evidence to support this claim.  Judicial Review is not an occasion for the Applicant to advance fresh claim.  This bare assertion is not related to any of the findings in the Board’s Decision.  It is not a valid ground for seeking judicial review of the Board’s Decision.  As the bare assertion has no relevance to the intended judicial review application, I do not propose to deal with it in this judgment.

21.  The Applicant testified at the hearing before the Board.  In §§16-30 of the Board’s Decision, the Board set out the Applicant’s case. 

22.  In §§35-62 of the Board’s Decision, the Board set out evidence given by the Applicant at the hearing before the Board and the Board’s analysis of the Applicant’s evidence given at different stages of her non-refoulement claim proceedings.  Having carefully considered all the evidence, the Board had cumulatively significant concerns regarding the truth of the central aspects of the Applicant’s claims and evidence advanced.  The Board did not accept that Husband had an outstanding debt to a loan shark in relation to which the Applicant had ever been threatened with harm of any nature (including force marriage) from Husband or the Creditor.  The Board also did not accept that the Applicant had suffered domestic violence from Husband or that she faced a real chance of serious harm, torture or death anywhere in Indonesia in the reasonably foreseeable future for any of the reasons she had claimed or arising on the evidence, including in relation to the Loan and/or domestic violence. (§63 of the Board’s Decision)

23.  As pointed out in the Nupur Mst case (supra), assessment of evidence and risk of harm 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.

24.  In maintaining in the Supporting Affirmation and the Letter that her life was still in danger if she were to return to Indonesia, the Applicant disputed the Board's assessment on evidence, credibility and risk of harm and sought 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.

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

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

27.  In §§64-83 of the Board’s Decision, the Board considered the Claim under each of the applicable grounds under the USM.

28.  The Board was not satisfied that there were substantial grounds or strong grounds for believing that the Applicant would be in danger of being subjected to torture as defined in Section 37U(1) of the Ordinance or there was a real risk that the Applicant would be subjected to the BOR 3 risk, if she were removed or surrendered to Indonesia.

29.  The Board was also not satisfied that the Applicant would suffer the death penalty, arbitrary deprivation of life or genocide in violation of BOR 2, or that she had a well-founded fear of persecution for any of the reasons referred to in the Refugees Convention, ie race, religion, nationality, membership of a particular social group or political opinion, if she were removed or surrendered to Indonesia.

30.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the applicable grounds under the USM.  These were findings of fact 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 for the Claim.  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

31.  The Form 86 was filed out of time without leave of the court 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