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

HCAL 580/2020

[2025] HKCFI 3049

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 580 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  The Form 86 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent and only the Director of Immigration as the Putative Respondent, and adding in the section of the Judgment, order, decision or other proceeding in respect of which relief is sought, the words “the Non-Refoulement Claims Petition Office” after the word “of”;

2.  Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is an Indonesian national. By a Form 86 dated and filed on 9 April 2020 (“Form 86”), the Applicant sought leave to commence a judicial review as regards “10 Jan 2020, My Appeal dismissed by the Adjudicator of Torture Claim Appeal Board (“TCAB”)].

2.  The Form 86 was accompanied by a supporting affirmation also dated and filed on 9 April 2020 (“the Affirmation”), which sought leave to apply for judicial review “for my Non-refoulement claim decision against the [Director of Immigration (“Director”)] on 29-March-2017, As well as The decision against The adjudicator of [TCAB] To dismissed my Appeal on 10-Jan-2020. Seeking Judicial Review for my claim.”[1].

3.  The Affirmation exhibited a decision of an adjudicator of the Non-Refoulement Claims Petition Office (“Adjudicator” and “NRCPO”) dated 10 January 2020 (“the NRCPO BOR 2 Decision”), which was the only decision made on that date and which concerned the Applicant’s claim for non-refoulement protection on the basis of BOR 2 Risk[2]. It also exhibited a Notice of Appeal/Petition dated 5 April 2017 (“Petition”).

4.  The Applicant had filed the Petition in relation to a decision of the Director dated 29 March 2017 (“Director’s BOR 2 Decision”). The Director’s BOR 2 Decision had dismissed the Applicant’s claim for non-refoulement on the basis of BOR 2 Risk.

5.  No grounds for judicial review are set out in the Form 86 or the Affirmation. The Applicant sought an oral hearing of her leave application. At the hearing, she said she had nothing else to say.

6.  Given the aforesaid, I doubt that the Applicant seeks leave to commence a judicial review of the Director’s BOR 2 Decision. However, insofar as she does, that application would stand only to be rejected, and I do so. Such an application is misconceived given both the existence and implications of the two-tier system and the lack of exceptional circumstances justifying such an application (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310).

7.  For the sake of completeness, prior to both the Director’s BOR 2 Decision and the NRCPO BOR 2 Decision, there had been a decision of the Director dated 2 January 2015 rejecting the Applicant’s claim for non-refoulement relief on the basis of Torture Risk[3], BOR 3 Risk[4], and Persecution Risk[5] (“the Director’s 1^st Decision”) which appeal/petition therefrom was rejected in a decision dated 6 August 2015 of the TCAB/NRCPO[6] (“the TCAB/NRCPO’s 1^st Decision”)[7] (see Paragraphs 1 to 8 of the NRCPO BOR 2 Decision, and 1 to 2 of the TCAB/NRCPO’s 1^st Decision). The Director’s 1^st Decision and the TCAB/NRCPO’s 1^st Decision are not the subject of this application for leave for judicial review.

8.  I have therefore amended the Form 86 of my own motion as set out above, reflecting in particular that leave is only sought in relation to the NRCPO BOR 2 Decision.

Background

9.  The Applicant’s background and case as to the incidents underlying her claim for non-refoulement relief, and the immigration and procedural history leading up to the NRCPO BOR 2 Decision, are set out in Paragraphs 1 to 26 of the same and in Paragraphs 24 to 37 of the TCAB/NRCPO’s 1^st Decision. For the sake of concision I will not repeat such. However, and in essence:

a.  The Applicant’s claim for non-refoulement relief on the basis of (as dealt with in the TCAB/NRCPO’s 1^st Decision) Torture Risk, BOR 3 Risk, Persecution Risk[8], and (as dealt with in the NRCPO BOR 2 Decision) BOR 2 Risk stems from a fear that she will be killed by a loan shark named Haifi (“Hafifi”), with whom she had cohabited, should she be returned to Indonesia;

b.  The Adjudicator who made the NRCPO BOR 2 Decision was the same member/adjudicator who had made the TCAB/NRCPO’s 1^st Decision. In reaching the TCAB/NRCPO’s 1^st Decision, the member/adjudicator had decided not to hold an oral hearing after considering the factors in ST v Betty Kwan [2014] 4 HKLRD 277 (CA), accepted the factual basis of the Applicant’s claim, and found that none of Torture Risk, BOR 3 Risk, or Persecution Risk had been made out;

c.  In 2017, the Applicant was invited to submit additional facts relevant to her claims including under BOR 2 Risk. While the Applicant said she reserved her right to be so screened under BOR 2 Risk, she did not provide any new materials or facts. The result was the Director’s BOR 2 Risk Decision; and

d.  The Applicant then filed the Petition. As the Applicant had therein alleged some recent conduct by Hafifi, the Adjudicator of the NRCPO saw fit to make some fresh inquiries of her by letter. The first attempt at doing so was returned undelivered as the Applicant had apparently moved, and there was no reply to the second attempt. In the end, the NRCPO held an oral hearing on 7 November 2019 which was attended by the Petitioner, who gave evidence and answered questions posed by the NRCPO.

10.  The NRCPO BOR 2 Risk Decision was then issued as mentioned above.

Legal Principles

11.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86 (Ho Loy & Another v Director of Environmental Protection, (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142).

12.  It is trite that judicial review is not a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, 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 TCAB/NRCPO (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

13.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

14.  The Form 86 and the Affirmation do not identify any grounds of judicial review. As I have mentioned, the Applicant had nothing to add at the oral hearing.

15.  As the Applicant has not identified or set out any grounds of judicial review, there is hence no allegation of any procedural unfairness in relation to, of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the NRCPO BOR 2 Decision. However, given the seriousness of the issues at hand, I have considered the NRCPO BOR 2 Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

16.  I have already summarised some of the contents of Paragraphs 1 to 26 of the NRCPO BOR 2 Decision. Further to that:

a.  The NRCPO BOR 2 Decision set out Paragraph 1 of BOR 2 and the approach it took in relation to such (Paragraphs 10 to 12);

b.  The Adjudicator then referred to the approach that he (as member/adjudicator) had taken to the facts in reaching the TCAB/NRCPO’s 1^st Decision, including that he had made findings of fact in favour of the Applicant in terms that were identified in the NRCPO BOR 2 Decision (Paragraph 15 to 16);

c.  The NRCPO BOR 2 Decision then explained that the Adjudicator had arranged the oral hearing as a matter of caution bearing in mind the principles in ST v Betty Kwan, supra, the recent allegations of Hafifi’s conduct, the Applicant’s failure to respond to written inquiries from the NRCPO regarding such, and that the TCAB/NRCPO’s 1^st Decision had been disposed of on paper (Paragraphs 17 to 21); and

d.  The Adjudicator then summarised the evidence at the oral hearing regarding the fresh allegations raised by the Applicant, the availability of police and court protection in Indonesia, and in relation to the facts of the Applicant’s original case as set out in the TCAB/NRCPO’s 1^st Decision (Paragraphs 22 to 26).

17.  This was followed by reference to the view in the TCAB/NRCPO’s 1^st Decision that the only evidence the Applicant had then relied on was the verbal threat by Hafifi as reported to her by her father (as to which I note, in particular, Paragraphs 29, 30, 36, and 39 of the TCAB/NRCPO’s 1^st Decision), but that from the Petitioner’s own evidence at the oral hearing it appeared that Hafifi himself never threatened her and she was unsure whether her father was reporting an actual threat, or was stating what he thought would be the outcome of her failure to pay up or marry. It was concluded that it was hence even less possible to infer that Haififi would try to kill the Petitioner if she were refouled, and there was no basis for a finding of BOR 2 Risk. The Petition was hence rejected and the Director’s BOR 2 Decision was confirmed (Paragraphs 27 to 31).

18.  Having subjected the NRCPO BOR 2 Decision to rigorous examination and anxious scrutiny, I do not see that the Applicant has any reasonably arguable case of procedural unfairness, an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test vitiating the NRCPO BOR 2 Decision. This is particularly so as to, and given, the assessment, reasoning, and findings regarding the Applicant’s evidence and story in support of her claim and consequently BOR 2 Risk, which are all matters primarily within the province of the NRCPO. There is hence no basis for the court to intervene by way of judicial review, and I am therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success. I make the following observations in particular.

19.  Firstly, I consider that the NRCPO adequately explained why it arrived at its the conclusions, and that in doing so it both had proper regard to relevant matters set out in the TCAB/NRCPO’s 1^st Decision, and adequately explained how it had reached its conclusions even when taking previous matters into account (Md Nazir Ahmed Sarkar v TCAB & anor. [2021] 5 HKC 237 (CA) at §§44-50).

20.  Secondly, the NRCPO’s role as primary decision-maker was to assess (on the evidence) the risk of harm to the Applicant herself. A core issue was whether Hafifi had in fact threatened to kill the Applicant, as allegedly communicated to her via her father. Given the oral evidence on that issue before the NRCPO it was entitled to not only reach a different conclusion on the facts of the case[9], but to also take such into account when making findings on BOR 2 Risk. There was hence also no basis for suggesting that harm was allegedly inflicted on her father on account of coercion upon her (cf. Sarkar, supra, Paragraphs 21-22 and 48-51).

Conclusion

21.  In the circumstances, I have ordered that the application for leave to apply for judicial review be 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