DIAH AYU SYAMSIAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1079/2023

[2026] HKCFI 2803

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1079 of 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

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 4 July 2023 for leave to apply for judicial review (the “leave application”) of a decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 27 June 2023 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 9 September 2022 (the “Notice”), refusing her application for non‑refoulement protection. 

The Applicant’s claim

2.  The Applicant is an Indonesian national, now aged 36.  She arrived in Hong Kong on 4 March 2019 to work as a foreign domestic helper but overstayed since 29 May 2022.  She was arrested on 7 June 2022 for overstaying.  Then, she lodged a non-refoulement claim by written signification on 20 June, 4 July and 5 July 2022.  Her claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. It was rejected by the Director’s Notice.  Her appeal against the Notice was dismissed by the Board’s Decision.  She now applies for leave to apply for judicial review of that Decision.

3.  The Applicant’s personal background, the factual background leading to the present application, the basis of her claim and the arguments she advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[5] for reference.  In gist, she claims she will be harmed or killed by her husband for not giving him money and by a moneylender for being unable to repay her husband’s debt owing to the moneylender. 

4.  The Applicant’s case as stated in her non-refoulement claim form (“NCF”) and record of screening interview (“ROI”) is as follows.  She married her husband in 2011.  Her husband was a farmer earning 500,000 to 700,000 Indonesian rupiahs a month.  She gave birth to their daughter in 2013.  Since then, the family had financial problems.  In 2015, the Applicant went to work in Singapore and remitted 4 to 5 million rupiahs per month to her husband.   Upon completion of her employment in Singapore in 2018, she returned to Indonesia. She found her husband had spent all the money she sent him and seldom returned home.  In late July 2018, a moneylender came to enquire for her husband’s whereabouts. He told her that her husband owed him a lot of money and demanded repayment. He shouted at her.  Out of fear, she paid him 2 million rupiahs.  When she informed her husband about the incident, he asked her to repay the debt for him.  A month later the moneylender came while her husband was away.  He said he would continue coming to her home to demand payment.  The Applicant was afraid.  She came to Hong Kong to work as a foreign domestic helper in March 2019.  In April 2019, her husband called her and demanded money.  That was the last time she ever spoke to him.  She remitted him 1 million rupiahs (which was the balance of her income after deducting agency fees) every month until September 2019.  From October 2019, she remitted 5 million rupiahs to him every month until March 2022 when her employment was terminated.  While she was in Hong Kong, her mother told her that the moneylender had visited her mother and asked for her and her husband’s whereabouts, but her mother did not tell.  She said the moneylender demanded repayment of the debt and threatened to harm the Applicant, if the debt was not repaid.  He took away some electrical appliances from her mother’s home.  The debt has snowballed to 900 million rupiahs by the time of hearing before the Board.   

5.  In the ROI, the Applicant confirmed that her husband had never injured her and she feared returning to Indonesia because of the moneylender. She said she had no information of her husband’s whereabouts, the identity of the moneylender or particulars of the loan.  She confirmed that the moneylender with one underling visited her three times in 2018 in total, that he did not carry any weapon and had never harmed her or her family.

The finding of the Board

6.  The Applicant testified before the Board.  She said she intended to divorce her husband and he was aware of her intention.  Contrary to what she had said in her NCF and ROI, she claimed that her husband had pushed her, punched her and hit her.  When confronted with the inconsistencies, she said she was too nervous to mention this claim.  The Board did not accept her explanation and found she was embellishing her claim during the hearing.  While accepting that the Applicant and her husband had argued about money and she was required to remit significant amount of her earnings to him, it did not accept she had been pushed, punched and hit by her husband. Having made that finding, the Board found her husband had no intention to harm her then or in the future.  It also found the Applicant did not genuinely fear harm from her husband. 

7.  The Applicant’ testimony before the Board that she had met the moneylender only once in 2018 is inconsistent with her evidence in the NCF that the moneylender had visited her home three times in total in 2018.  The Board noted that the Applicant did not seek protection immediately upon her arrival in Hong Kong in March 2019, but waited until she was arrested by the police for overstaying more than three years later.  It considered the delay adversely affected the credibility of her claim for protection and it had doubts about the genuineness of her fear of harm from her husband and the moneylender.  It also considered the fact that the moneylender never harmed the Applicant or her family indicative of an absence of a real intention to harm the Applicant.  Furthermore, the Board was satisfied that if the Applicant has any remaining fear of harm from the moneylender, she can relocate to other parts of Indonesia away from her home area.  Having regard to her age and work experience, the Board considered it would not be unduly harsh for her to so relocate.  It was therefore not satisfied that there were substantial or strong grounds or a real risk that the Applicant would be at risk of any of the proscribed harm, if returned to Indonesia. 

8.  Applying the law applicable to non-refoulement protection under the USM, it found the Applicant had failed to prove her entitlement to protection under any of the applicable grounds under the USM.  Hence, it dismissed her appeal.

The legal principles applicable to judicial review

9.  The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[6].

Grounds for judicial review

10.  After the above legal principles had been explained to the Applicant, she confirmed that she had no complaint about errors of law, procedural unfairness or irrationality in the Decision.  However, she had advanced the following grounds of application in her Form 86:

(1)   the Board was in breach of procedural fairness in not holding a rehearing;

(2)   the Decision is unreasonable or irrational in the public law sense and is the result of procedural errors or unfairness;

(3)   the Board unlawfully fettered its discretion by dismissing her appeal on the grounds that it did not meet the requirements;

(4)   the Board failed to meet the greater duty of care owed to an unrepresented claimant;

(5)   the Board acted in a procedurally unfair manner in dealing with the Applicant;

(6)   it is the Applicant’s fundamental human right not to be subjected to torture;

(7)   the Board did not interact with the Applicant’s claim, did not conducted any analysis of the supporting documents and did not turned its mind to the risk of violation of the Applicant’s right to life under BOR 2;

(8)   the Applicant will face hardship if returned to her home country and the Board has relied on source of news which is not officially recognized;

(9)   the Board should treat each appeal as a de novo hearing;

(10)   the Board relied on some outdated cases which resulted in its making groundless speculations; and

(11)   despite the Applicant’s problems in her home country are very severe and she had already submitted all the documents, the Board was not caring and made the Applicant disappointed.

11.  The Applicant’s grounds are not entirely comprehensible.  When asked for elaboration or particulars she was unable to response.  Some of the grounds are just legal principles and disclosed no substantial complaints. Some of the grounds are lacking in particulars.

12.  Ground (1):   On the face of the Decision, an oral hearing had been held.  In answer to the Court’s request for particulars, the Applicant accepted that the Board did hold an oral hearing.

13.  Ground (2):   This ground is lacking in particulars.  In answer to the Court’s request for particulars, the Applicant replied that her life is still in danger.  That is a statement of fact, contrary to the Board’s finding.  This ground is therefore a challenge of the Board’s finding of fact. But it does not identify the unreasonableness, irrationality and unfairness complained of.

14.  Ground (3):   This ground is lacking in particulars as to what were the requirements which the Applicant claimed she had met but the Board falsely found she had not.  These particulars are required to prove that the discretion should have been exercised otherwise.  The Applicant admitted she was unable to provide the particulars.

15.  Ground (4):   This ground is lacking in particulars as to what were the contents of this ‘greater duty of care’ owed to the Applicant as an unrepresented claimant and evidence of the Board’s breach.

16.  Ground (5):    The Applicant admitted that she was unable to provide particulars of the unfair manner alleged.

17.  Ground (6) and (9):   This is just a statement of principle with no complaint of any impropriety.

18.  Ground (7):   The Applicant admitted that she was unable to provide particulars of the Board’s failure.  A reading of the Decision shows clear indication of the Board reacting to the Applicant’s claims.

19.  Ground (8):   This ground is a clear challenge of the Board’s finding of fact, which is impermissible.  The Applicant could not give particulars of the source of news which she claimed was not officially recognized.

20.  Ground (10):   The Applicant could not identify the cases which she claimed are outdated.  Having read the Decision, the Court could not find any case quoted by the Board which had been overruled.

21.  Ground (11):   This ground is more an expression of the Applicant’s sentiment than a properly pleaded complaint of the Board’s error.  The Court would bear this ground in mind in its overall scrutiny of the Board’s Decision.’

22.  None of these grounds is a valid ground of application.

Overall scrutiny

23.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection 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 evidence, except her claim of assault by her husband and her explanation for not promptly seeking protection upon her arrival in Hong Kong.  It analysed the evidence carefully and tested it against common sense, inherent probability and the COI.  It made some further finding of fact on the basis of her evidence, the inferences it drew from the evidence and the COI.  It gave full reasons for its finding.  On the evidence, it was open to the Board to make the findings as it did.  Applying the law applicable to non-refoulement protection to the facts it found, the Board came to the conclusion that the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  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 proposed judicial review has no realistic prospect of success. 

Conclusion

24.  For the above reasons, the Applicant’s 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

Form CALL-1