YUTI-UTAMI v. TORTURE CLAIMS APPEAL BOARD

HCAL 2203/2023

[2025] HKCFI 4583

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2203 OF 2023

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 andoral submissions by the applicant or counsel in open court;

1.      On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

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 8 December 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 11 October 2023 (“the Board’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL002203_2023_files/the_Board's_Decision.pdf

2.  The Board rejected the applicant’s application for non-refoulement protection as not substantiated on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 27 July 2023.

Amendments

3.  In Form 86, the applicant named the Board and Non-refoulement Claims Petition Office as both the putative respondent and the putative interested party, when only the Board should be the putative respondent and the Director should be the putative interested party. 

4.  The Non-refoulement Claims Petition Office should not be named as a party at all, as it is just an office providing administrative and secretariat support to the adjudicators of the Board.

5.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

6.  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 Decision, which can be viewed in the hyperlink above.

7.  In sum, the applicant claimed for non-refoulement protection because she feared that, if refouled to Indonesia, she would be harmed or killed by a loan shark, Mr S, who was the creditor of her late-husband, as her late-husband had borrowed IDR250 million from him.  The applicant’s mother told her that as the wife of her late-husband, the applicant was responsible to repay the loan to Mr S.  Mr S threatened to kill the applicant if she did not do so.

Withdrawal of the Leave Application

8.  By way of a letter dated 13 June 2025, the Director notified this court that the applicant wrote a letter dated 27 May 2025 to withdraw her judicial review application.  In the applicant’s said letter, the applicant stated that:-

“I would like to withdraw my judicial review application under reference ( ). Please withdraw all my cases in Hong Kong as I want to return to my home country as soon as possible. My issues in my home country have been resolved, and I can return home.”

9.  There is no evidence to show that the applicant made the above withdrawal application other than out of her own volition.  With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or have any oral hearing even though she had previously requested one. 

10.  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.”

11.  Thus, it is just not right to leave the action at large by granting leave to withdraw to the applicant.  This court will proceed to determine the merits of the Leave Application.

Grounds for judicial review

12.  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).

13.  The applicant did not advance any ground for the intended judicial review in Form 86, nor in her supporting affirmation dated 8 December 2023.  She merely stated in the affirmation that she did not want to go back to Indonesia because her life would be in danger, the loan shark would kill her as she could not pay the debt and she did not have any money to pay the debt.

Discussion

14.  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).

15.  Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

16.  The applicant was afforded an oral hearing before the Board on 4 October 2023 and the applicant was present.  Thus, the applicant did have the opportunity to present her case to the Board in person.

17.  The Board gave detailed analysis and reasoning for its conclusion that the applicant was not a credible witness.  The numerous significant inconsistencies of the applicant’s evidence led the Board to have a strong impression that the applicant was inventing answers in response to the Board’s questions.

18.  For reasons of the multiple material inconsistencies and implausibilities in the applicant’s evidence and her non-persuasive explanations, the Board was unable to give her the benefit of the doubt.  The Board considered that the applicant had fabricated her whole claim in an attempt to create a basis to apply for protection in Hong Kong.

19.  The Board had considered the claims of the applicant individually and cumulatively, as well as the personal circumstances of the applicant.  On the credible evidence before it, the Board did not consider that the applicant faced a real risk of any of the proscribed harm from Mr S if the applicant were refouled to Indonesia.

20.  The Board did not consider availability of state protection and viability of internal relocation.  However, as the applicant’s claims and the matters giving rise to her claims for non-refoulement protection were rejected in their entirety, it is therefore not necessary for the Board to consider the availability of state protection.

21.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997).  In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755).

22.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

23.  The assessment of evidence and risk of harm was primarily within the realm of the Board.  The Board was entitled to make its own decision.  This court finds nothing wrong or unreasonable in the way the Board reached its decision. 

24.  Having rigorously examined the Board’s Decision 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 Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

25.  Thus, there is no merits in the Leave Application at all.

26.  Moreover, as the applicant had confirmed that her issues in her home country had been resolved, it is clear that she no longer needs non-refoulement protection and the Leave Application serves no practical purpose.

27.  It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (see AW v Director of Immigration and William Lam, CACV 63 of 2015).

28.  Even assuming that there were errors of law, procedural unfairness, or irrationality in the Board’s Decision and the case were remitted to the Board for reconsideration, there would simply be no more basis for the applicant to claim non-refoulement protection as her issues in her home country have been resolved. The Board should assess the risk of the applicant at the time of the proceedings, taking account of information that has come to light to ensure that it is able to make a “full and up-to-date assessment” of the current situation (see Ubamaka Edward Wilson v Secretary for Security and Another (2012) 15 HKCFAR 743).

29.  It is therefore otiose and pointless to grant leave to the applicant to proceed with the intended judicial review, and hence the Leave Application ought to be dismissed.

Conclusion

30.  For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is 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