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

HCAL 805/2024

[2025] HKCFI 571

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 805 of 2024

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 Daryati (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 19 April 2024 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 18 October 2023 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is an Indonesian. She was born on 27 August 1985 in Central Java, Indonesia. She received 9 years of education and had 7 years of work experience as a foreign domestic helper in Singapore and Hong Kong.

The Claim

3.  In January 2022, the Applicant borrowed IDR 50 million (“1^st Loan”) from her brother (“Brother”) to pay for the medical treatment of her mother’s heart disease. There was no written agreement and the 1^st Loan carried no interest.

4.  The Applicant made 3 payments to Brother, each ranging from IDR 1 to 2 million. Her last payment was made in July 2022. In around March 2022, she learnt that Brother was not pleased with her progress on paying back the 1^st Loan. She therefore stopped contacting Brother and ignored his phone calls since March 2022.

5.  After the last payment in July 2022, the Applicant’s mother told her that Brother had threatened to seize a plot of rice field (“Rice Field”) owned by the Applicant. The Applicant bought the Rice Field in 2015 for IDR 120 million with the money she made in Singapore. On 28 August 2022, the Applicant told Brother (through their mother) not to take possession of the Rice Field and that she would pay him back as soon as she had the money.

6.  In April 2023, the Applicant’s mother needed IDR 30 million for her heart operation. The Applicant borrowed IDR 30 million (2^nd Loan) from her twin sister (“Sister”), which carried no interest. Sister was not working but her husband (“S”) had a job. The Applicant never made any payment for the 2^nd Loan.

7.  In May 2023, the Applicant’s employment in Hong Kong was terminated and she told Sister about the termination. Both Sister and S demanded the Applicant to pay back the 2^nd Loan by December 2023.

8.  Sister told Brother about the termination of the Applicant’s employment in Hong Kong, and he got angry. Brother told Sister that he would kill the Applicant if she failed to pay back the 1^st Loan. This was the only occasion when Brother issued a threat against the Applicant.

9.  The Applicant confirmed that neither Sister nor S had threatened her in the past. The Applicant did not have any update about Sister after May 2023.

10.  The Applicant claimed that she would be harmed or killed by Brother or Sister if she were returned to Indonesia.

Procedural history

11.  The Applicant arrived in Hong Kong on 2 October 2018. She was granted permission to stay in Hong Kong as a foreign domestic helper until 2 October 2024 or two weeks after termination of her employment. Her employment was pre-maturely terminated on 26 May 2023. She did not leave Hong Kong within the prescribed period and overstayed in Hong Kong.

12.  She was arrested by the police on 19 August 2023 for having overstayed in Hong Kong. By a written representation of 28 August 2023, the Applicant lodged the Claim.

13.  The Director had considered the Claim on all applicable grounds under the unified screening mechanism (“USM”), namely:

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

(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”, “BOR 2” and “BOR 2 risk”);

(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”).

14.  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.

15.  On 21 May 2024, 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.

16.  On 18 June 2024, the Applicant filed another affirmation applying to withdraw this intended judicial review application stating that she wished to go back to her home as soon as possible (“Withdrawal Application”).

17.  Subsequently, the Director informed the court that the Applicant had been removed in November 2024. In such case, I decided to deal with this application according to papers already placed before the court.

The DOI Decision

18.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that Brother or Sister intended to harm the Applicant. They had not showed that they had real intention to seriously harm and/or kill the Applicant. The Director did not accept that the Applicant’s claimed risk of being harmed or killed by Brother/Sister was real and foreseeable or as imminent and dominant as the Applicant claimed.

19.  The Director further noted that the Applicant ceased contact with Brother after March 2022 and with Sister after May 2023. The Applicant’s mother also did not give the Applicant any significant update about Brother or Sister. The Director therefore found that the Applicant’s assertion about being seriously harmed or killed by Brother/Sister upon her return to Indonesia was “far-fetched”.

20.  There were no substantial grounds to believe that further action (if any) by Brother or Sister would be inflicted by or at the instigation of or with the consent or active/passive acquiescence of a public official or other person acting in an official capacity. There was no indication that the Indonesian government would be involved in, indifferent to or provide any form of encouragement to Brother or Sister in threatening or harming the Applicant. The Applicant was not an adverse target of the Indonesian government nor did the Indonesian government have any adverse interest in the Applicant.

21.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that reasonable state protection would be available to the Applicant in Indonesia, if necessary. She could also seek assistance from non-government organizations (“NGOs”) protecting women.

22.  There was insufficient evidence suggesting that Brother or Sister had the ability and resources to track the Applicant down wherever in Indonesia. There was no indication that they had influence or connection with the authority of Indonesia. The threats or ill-treatment from them, if any, were limited and localized. The Director found that internal relocation would be viable to the Applicant. If the Applicant moved to Surabaya or Bali, Brother and Sister would have great difficulties in locating her. After considering her education and work experience, the Director found that it would not be unduly harsh to expect her to relocate to those areas and lead a normal life.

23.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

24.  After considering the Applicant’s claims including her written evidence, the record of her interview, her notice of appeal and her oral evidence given at hearing before the Board, the Board largely accepted the Applicant’s case despite the lack of corroborating evidence to support her claim.

25.  The disputes between the Applicant and Brother/Sister were plainly private in nature and not related to any of the reasons provided under the Refugees Convention. There was no suggestion that the state of Indonesia was involved in any way in the disputes or encouraged Brother/Sister in causing harm (if any) to the Applicant.

26.  The Applicant had failed to establish a reasonable degree of likelihood that she would be persecuted or exposed to a real risk of a violation of BOR 2 upon her return to Indonesia.

27.  Neither Brother nor Sister had physically harmed the Applicant in the past. The Board did not consider that the alleged ill-treatment on the Applicant, both individually and cumulatively, had reached the level of minimum severity. The Board did not accept that there were substantial grounds for believing that the Applicant would be in danger of being subjected to the torture risk or the BOR 3 risk upon her return to Indonesia.

28.  The Board held that state protection would be available to the Applicant. The Applicant could also seek assistance and protection from other NGOs.

29.  The Board further held that internal relocation was permissible in Indonesia and the Applicant could relocate to other parts of Indonesia to avoid Brother and Sister. The Board found that Surabaya and Bali would be viable choices. With her age, education and work experience, it would not be unduly harsh or unreasonable to expect her to relocate to those areas to lower or negate the risks from Brother and Sister.

30.  The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

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

32.  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 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.”

33.  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

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

35.  In the Supporting Affirmation, the Applicant only stated that she wished to appeal against the decision of the Director in respect of her claims under the torture risk, the BOR 3 risk and the BOR 2 risk. She further stated that the Adjudicator of the Board did not give her the true decision and she wanted to talk to the Adjudicator again. She then produced the Board’s Decision as exhibit to the Supporting Affirmation without other supporting documents.

36.  No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affirmation. 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 was the Board’s Decision 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.

37.  Having rigorously examined the Board’s Decision and the DOI 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 under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

38.  The Board found that the Applicant had failed to show that she had a well-founded fear of being persecuted or substantial grounds for believing that if refouled, there would be a real risk or substantial grounds for believing that she would be subjected to the BOR 3 risk. The Board was of the view that the Applicant had not shown that her BOR 2 rights were engaged or the elements for “torture” stipulated in section 37U of the Ordinance had been satisfied. Furthermore, reasonable state protection would be available to her and internal relocation viable.

39.  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 are findings of fact which are 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. 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.

The Withdrawal Application

40.  By the Withdrawal Application, the Applicant sought to withdraw her application for leave to apply for judicial review. She stated that she wanted to go back to her country.

41.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of her own volition.

42.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

43.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) 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.”

Conclusion

44.  In the premise and having considered the Board’s Decision and the DOI 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.

45.  As the court was notified by the Director that the Applicant had been removed from Hong Kong and she has not provided her new address to the court for service of documents to her, the court will send a copy of this judgment and the sealed order to the Applicant at her address stated in the Withdrawal Application with a copy set to the Director and request the Director to use his best endeavor to forward them to the Applicant.

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