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

HCAL 2324/2019

[2025] HKCFI 603

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2324 of 2019

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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 13 August 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 15 May 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 26 September 2018 (the “Notice”), refusing her non-refoulement application.

Background

2.  The Applicant is an Indonesian national. She first started working in Hong Kong as a domestic helper in 2007. She had a number of extensions of her stay in Hong Kong but she overstayed since 14 March 2012. On 7 August 2012, she was arrested for overstaying, convicted and sentenced. On 28 August 2012, she made a torture claim (the “Torture Claim”) under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Her application was rejected by the Director on 14 May 2013. Her appeal was dismissed by the Board on 24 June 2013. That decision is now final.

3.  She then made a non-refoulement claim on 2 July 2013. In due course, her non-refoulement claim was assessed on the remaining three applicable grounds under the Unified Screening Mechanism (the “USM”), namely: BOR 3 Risk[1]; Persecution Risk[2]; and BOR 2 Risk[3]. Her application was rejected by the Director’s Notice. Her appeal was dismissed by the Board’s Decision. She now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

4.  The following account of the Applicant’s case is mainly based on the information in the torture claim form prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claims she will be harmed or killed by her husband, if returned to Indonesia.

5.  The Applicant is an Indonesian national, now aged 41. She had nine years’ formal education and seven years’ working experience as a domestic helper in Singapore and Hong Kong. She is married with one son, but she does not know the whereabouts of her husband and son. Her parents and four siblings are living in Indonesia.

6.  The Applicant married her husband in 2003. In January 2006, she discovered he was a habitual gambler and had borrowed 45 million Indonesian Rupiahs from a loan shark. She claimed that her husband had subjected her to domestic violence since April 2006 for not having money to repay his debt. Most of the time, he slapped her and assaulted her with a broomstick. For three times, he burned her with lightened cigarette butts. In May 2006, he once threw a kitchen knife at her, resulting in a superficial cut on her right foot. The alleged violence continued until she moved away from him in December 2006. She self-treated her injuries at home, as she had no money to seek medical treatment. She did not lodge any complaint with the police because he always locked her up at home and, in any event, she had plans to leave Indonesia to work overseas.

7.  In December 2006, under the pretext of visiting her sister, she left home and went to stay in an employment agency in Jakarta until she found and took up employment in Hong Kong in April 2007. She remitted some of her earning to her husband until 2008 when she found out he used the money to gamble instead of to repay his debt. She also changed her contact information so that her husband could not locate her. She last contacted her husband in 2017 but hung up as he only wanted to talk about money. She had lost contact with him since.

8.  She worried that she would be tortured by her husband again if she returned to Indonesia. Hence, she stayed in Macau or Mainland China between her employment contracts.

9.  The Applicant claimed that state protection was not available because she believed the Indonesian authorities were not in a position or willing to protect her. She did not have the resources to move anywhere else in Indonesia and was afraid to be found by her husband.

The finding of the Board

10.  The Applicant elected not to testify. The Board considered her simple account of domestic violence coherent and consistent. It accepted her account and assessed her claim on the basis of the account as she asserted. It found that her fear of ill-treatment stemmed from a purely private and domestic conflict with her husband in which she was subjected to violence repeatedly. The physical violence so inflicted on her resulted only in minor injuries, which did not attain a minimum level of severity. No public or government officials were involved in inflicting the harm on the Applicant.

11.  On the basis of the objective country of origin information (“COI”), the Board accepted that reasonable state protection is available. Moreover, as an able-bodied person, she can relocate to other parts of Indonesia to avoid the perceived risks from her husband, which are only localised in her home area. The Board considered that she had failed to show, even to the low standard required, that she faced a real and substantial risk of being subjected to torture if returned to Indonesia and there could not possibly be any substantial grounds for finding that she faced a real risk of ill-treatment if refouled to Indonesia. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support her claims for protection under any of the applicable grounds being considered. Hence, it dismissed her appeal against the Notice.

Legal principles applicable to judicial review

12.  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[4].

Grounds for judicial review

13.  The Applicant advanced the following five grounds in Form 86:

(1)  the Director’s and the Board’s decisions are unfair and unreasonable;

(2)  the Director failed to give proper weightage to the presence of state acquiescence;

(3)  the Director failed to take such argument into account or to give enough weight to such argument and COI supporting the Applicant’s case;

(4)  the Director’s attitude was unfair; and

(5)  the Director has failed to attain the high standard of fairness required by the Wednesbury test.

These grounds are directed mostly at the Director and not the Board. As the Director’s decision in the Notice had been superseded by the Board’s Decision (see Re Moshsin Ali[5]) and is not the subject matter of this application, the Court assumed for the benefit of the Applicant that they are directed at the Board as well.

14.  These grounds are all phrased in general terms and lacking in particulars. The Applicant asserted that they were all written by her and she would be able to answer the Court’s questions relating to those grounds. However, when asked for particulars, she could not provide any other than it is dangerous for her to return to Indonesia, she needed more time to stay in Hong Kong and that she forgot about the particulars and the evidence about state acquiescence. In the absence of specific grounds of application, the Court in an application for judicial review could only focus

15.  …………………………..on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

Overall scrutiny

16.  Having rigorously examined the Decision, the papers 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 three applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board accepted the Applicant’s account and assessed her claim on the basis of her account as she asserted. It was on that basis that the Board found the Applicant’s feared ill-treatment is not well-founded. Then, applying the law to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the three remaining applicable grounds under the USM. These are mixed finding of law and of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as these are finding of the law, they are absolutely correct. Insofar as they are finding of fact, they are solely within the realm of the Board. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

17.  For the above reasons, the leave application is refused.

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

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