FIFIN FARIDA v. TORTURE CLAIMS APPEAL BOARD

HCAL 939/2020

[2025] HKCFI 3334

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 939 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

1.  On this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the decisions in respect of which relief is sought be amended to “Torture Claims Appeal Board’s two decisions dated 24 November 2016 and 17 January 2020 respectively”.

2.  The applicant’s application 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 19 May 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, namely:-

(1)  a decision made on an unknown date but notified to the applicant on 11 May 2020; and

(2)  the decision of the Torture Claims Appeal Board (“the Board”)/the Adjudicator made on 17 January 2020 dismissing the appeal by ruling that the applicant fails to establish a case for non-refoulement whether under the principles of Torture or BOR 2 or BOR 3 or Prosecution [sic].

2.  In relation to the applicant’s claim for non-refoulement protection, the Board made two decisions. The first one was made on 24 November 2016 (“the Board’s 1^st Decision”) dismissing the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 24 December 2014 (“the Director’s 1^st Decision”). The second was the Board’s decision dated 17 January 2020 (“the Board’s 2^nd Decision) dismissing the applicant’s appeal/petition against the Director’s decision dated 25 January 2017 (“the Director’s 2^nd Decision”).

3.  In her supporting affirmation dated 19 May 2020, it seems that the applicant was saying that the decision with unknown date was the Board’s 2^nd Decision. However, the Board’s 2^nd Decision only dealt with the applicant’s BOR 2 Risk[1], not the other three risks, ie Torture Risk[2], BOR 3 Risk[3] and Persecution Risk[4] as mentioned in her Form 86. It was the Board’s 1^st Decision that dealt with the applicant’s other three risks. Her supporting affirmation also mentioned both her BOR 2 Risk and BOR 3 Risk.

4.  As the applicant referred to all four risks in her Form 86, and for the sake of completeness, this court will treat both the Board’s 1^st Decision and the Board’s 2^nd Decision as the decisions in respect of which relief is sought in the Leave Application. The Board’s 1^st Decision and the Board’s 2^nd Decision can be viewed in the following hyperlinks:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000939_2020_files/1st_Board's_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000939_2020_files/2nd_Board's_Decision.pdf

5.  The combined effect of the Board’s 1^st Decision and the Board’s 2^nd Decision was that the applicant’s claims for non-refoulement protection were not made out on all four applicable grounds under the Unified Screening Mechanism (“the USM”).

Amendments

6.  In Form 86, the applicant named both the adjudicator and the Board as the putative respondents, when only the Board should be the putative respondent. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”.

7.  As aforesaid, the decisions in respect of which relief is sought in the Leave Application should be both the Board’s 1^st Decision and the Board’s 2^nd Decision. Hence, on this court’s own motion, the decisions in respect of which relief is sought is amended to the Board’s both decisions.

Late application

8.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s two decisions were made.

9.  However, the applicant filed Form 86 on 19 May 2020, which was more than 3 years and 5 months after the Board’s 1^st Decision (made on 24 November 2016) and more than 4 months after the Board’s 2^nd Decision (made on 17 January 2020). The applicant was hence late (more than 3 years and 2 months for the Board’s 1^st Decision and more than 1 month for the Board’s 2^nd Decision) in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

10.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

11.  The applicant did not make any application for extension of time. In her supporting affirmation, the applicant stated that she received the Board’s 2^nd Decision on 11 May 2020 without any satisfactory reason given for the late receipt. Although a delay of more than 1 month is not too long in respect of the Board’s 2^nd Decision, there was no justification for the delay of more than 3 years and 2 months in respect of the Board’s 1^st Decision.

12.  More importantly, there is no merits of the intended judicial review as discussed below. Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

13.  However, for the sake of completeness, this court will deal with the merits of the Leave Application as discussed below.

The applicant’s case

14.  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 two decisions, which can be viewed in the hyperlinks above.

15.  In sum, the applicant claimed for non-refoulement protection because she feared being harmed or killed by a man named Mas Agus if she were to return to Indonesia, as she refused to marry him so as to write off the debt owed to him by her father.

Oral hearing and withdrawal application

16.  The applicant sent a letter dated 15 May 2025 to this court shortly before the oral hearing fixed for her case on 22 May 2025. In her letter, the applicant said that she would like to make a request to close her case in the High Court and to cancel the hearing on 22 May 2025 because she decided to leave Hong Kong and go back to her own country.

17.  The applicant attended the oral hearing before this court on 22 May 2025, and she repeated the request to withdraw the Leave Application and return to Indonesia as her parents were sick. She also confirmed at the hearing that it was safe for her to return to her home country as her problem had been solved. The money owed to Mas Agus was repaid and he would not force her to marry him any more.

18.  There was no indication that the withdrawal application was not made out of her own volition. With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application.

19.  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.”

20.  Thus, it is just not right to leave the action at large by granting leave to withdraw to the applicant. This court will still deal with the merits of the Leave Application.

21.  The applicant’s application to withdraw the Leave Application is therefore refused.

Grounds for judicial review

22.  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).

23.  In Form 86, the applicant advanced four grounds for the intended judicial review, which are as follows:

(1)  The Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement.

(2)  The Board acted in a procedurally unfair manner in dealing with the applicant’s appeal.

(3)  The Board’s decisions to refuse the applicant’s appeal were unreasonable or irrational in the public law sense, or were a result of procedural errors or unfairness.

(4)  The Board failed to meet the greater care and duty owed to a self-represented claimant.

24.  In her supporting affirmation, the applicant made the following complaints, which can be summarized and regarded as additional grounds (with sequential numbers following the above grounds) for the intended judicial review:-

(5)  The applicant was not given legal and language assistance for the appeal hearing.

(6)  The hearing bundle was given only a few days before the appeal hearing. The lack of care by the Board to make appropriate arrangements in relation to the hearing bundle led to an unfair hearing.

(7)  The Board relied on information lacking credibility.

(8)  The decision to reject the applicant’s claim on BOR 2 Risk was not screened by the Immigration Department.

(9)  The Board’s decision was wrong because it rejected her claim without any proper enquiry and understanding of her situation.

Discussion

25.  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).

26.  First of all, most of the applicant’s grounds as aforesaid are vague and general. As held by the court of appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. Thus, what the applicant alleged in her Form 86 and supporting affirmation cannot establish any valid ground to challenge the Board’s two decisions when the allegations are so vague and general without any requisite particulars related to the applicant’s case. This applies to the grounds mentioned in (1), (2), (3), (4), (7) and (9) above.

27.  In relation to Ground (5) mentioned above, ie the allegation that there was a lack of legal assistance, a lawyer from the Duty Lawyer Service did assist the applicant in the preparation of her Non-refoulement Claim Form. The Court of Appeal has repeatedly emphasised that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37). Hence, there is no substance in this allegation.

28.  Likewise, it is trite that the high standards of fairness required by law would not entail an interpretation service being made available at any time the applicant desires (see Re Gurnishan Singh [2018] HKCA 704 and Re Gurung Sagar [2019] HKCA 658). The applicant’s allegation that there was no interpreter for her (as mentioned in Ground (5) above) simply cannot help her. Moreover, it is noted that all the documents filed by the applicant in relation to the Leave Application were written in English. It indicates clearly that the applicant is either familiar with the English language or she has access to such language assistance if needed. The applicant cannot claim that she has been prejudiced at all.

29.  In assessing the appeals/petitions by the applicant, the Board arranged oral hearings on 8 July 2015 and 17 September 2019 (in respect of the Board’s two decisions respectively) and the applicant was present at both hearings. Hence, the applicant did have the opportunity to present all her evidence and proof to the Board. If the applicant had problems in preparing her case because of the hearing bundle (as alleged in Ground (6) mentioned above), she could have raised it to the Board and sought an adjournment to deal with the bundle first, but she did not raise such a problem to the Board. There is absolutely no justification for her to raise it at this stage.

30.  The Director’s 2^nd Decision rejected the applicant’s non-refoulement application based on her BOR 2 Risk, and her appeal/petition was dismissed by the Board’s 2^nd Decision. Hence, it is utterly untrue that the applicant’s claim on BOR 2 Risk was not screened by the Immigration Department (as alleged in Ground (8) mentioned above).

31.  Thus, none of the grounds mentioned by the applicant could amount to a valid challenge to the Board’s two decisions.

32.  It was the Board’s finding that the likelihood of Mas Agus seriously harming the applicant on her return was very low, and even leaving that aside, the Board also found that state protection was available to the applicant and internal relocation was viable for the applicant. This court finds nothing wrong or unreasonable for the Board to reach its decisions.

33.  The assessment of evidence, country of origin information and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

34.  Having rigorously examined the Board’s Decisions 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 errors of law, procedural unfairness or irrationality in the Board’s Decisions. The Board’s Decisions do satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decisions.

35.  Moreover, as aforesaid, the applicant confirmed at the oral hearing before this court that her problem had been solved and it was safe for her to return to Indonesia. Thus, the basis for the applicant’s claim for non-refoulement protection is completely gone and the applicant would not have any realistic prospects of success in the intended judicial review.

36.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys 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

37.  For reasons aforesaid, the application for leave to withdraw the Leave Application is refused, and the Leave Application is dismissed for being made out of time and devoid of merits.

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