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

HCAL 1392/2024

[2025] HKCFI 1906

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1392 of 2024

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.

2.  The Leave Application be dismissed.

Introduction

1.  By prescribed Form 86 filed on 21 August 2024, the applicant applied for leave to apply for judicial review (“Leave Application”) of the decision of the Torture Claims Appeal Board (“the Board”) dated 25 July 2024 (“Board’s Decision”). The Board had dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 25 January 2024 (“Director’s Decision”) who refused the applicant’s claim for non-refoulement protection.

2.  In her Form 86, the applicant named the Board as the interested party. As the Director should have been the interested party, the Form 86 will be accordingly amended.

Background

3.  The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.

4.  The applicant is an Indonesian national. She last arrived in Hong Kong on 22 January 2020 and was last employed as a domestic helper. On 14 October 2023, she was convicted of the offence of breach of condition of stay by taking up unapproved employment and was sentenced to two months’ imprisonment. On 27 November 2023, the applicant lodged a non-refoulement claim, covering all applicable grounds of torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on her fear of being harmed or killed by her abusive husband in Indonesia as she had stopped remitting money to him.

5.  The Director decided against the applicant’s claim on all applicable grounds. The Director found that, in light of the fact that level of past ill-treatment by her husband and his verbal threats to kill her did not reach the minimum level of severity, and that any risk of harm from him was localized, the applicant did not face any real risk of harm. Moreover, the Director considered that reasonable state protection would be available and that internal relocation would be viable.

6.  The Board found that the most of the incidents of the abuse by her husband, and the applicant’s injuries were minor. The Board did not believe that that her husband would severely harm or kill the applicant. Therefore, the Board found that there was no real risk of harm. The Board also considered that internal relocation would be viable. Thus, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

7.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and disposition

8.  The applicant’s Form 86 did not contain any grounds for seeking relief. In her supporting affirmation, she deposed that her life would be in danger because her husband would kill her if she were to return to Indonesia, and that she only felt safe in Hong Kong. There was no evidence or identification of errors in support of the intended challenge.

9.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the four grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. In the absence of any specific grounds in support of the Leave Application, I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge her burden of proving the asserted fears and risks.

10.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. The Leave Application is accordingly dismissed.

“Cancelling” of the Leave Application

11.  On 11 December 2024, the applicant filed an affirmation to apply to cancel he Leave Application, stating that she wished to cancel all her non-refoulement claims.

12.  In view of the discussion above, I think it is appropriate, as a matter of practice, to dismiss her Leave Application instead of merely granting leave to withdraw the Leave Application (Re Rini Artini [2020] HKCA 709 at§9).

Orders

13.  The Form 86 is amended on the court’s own motion.

14.  The Leave Application 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