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HCAL 2810/2019
[2025] HKCFI 2228
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2810 of 2019
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Rina Ani Rosidah |
Applicant |
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and
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration
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Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge Levy:
The Leave Application be dismissed.
Observations for the Applicant:
Introduction
1. By prescribed Form 86 filed on 24 September 2019, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 19 September 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 9 April 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim.
2. At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 15 April 2025. The applicant attended the hearing in person. After having heard from her, this court informed him that the decision would be reserved, and be sent to her updated address.
Background
3. The background as taken from the respective decisions of the Director and the Board referred to above can be briefly stated as follows.
4. The applicant is a national of Indonesia. She was previously employed as a foreign domestic helper and was last permitted to remain in Hong Kong until 28 May 2016. She did not depart, and has overstayed since then. She surrendered herself to the Immigration Department on 27 June 2016. She raised a non-refoulement claim on 27 January 2017. The applicant’s claim was considered under all applicable grounds - the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on a fear that if refouled, she would be harmed or killed by her father and his loan shark.
5. According to the applicant, in or about 2006 or 2007, one of her uncles raped her. A few days after, she went to the police station to report the rape. However, the police told her that she had no proof especially that she had failed to report the case immediately. They said there was nothing they could do to help her. Another uncle also attempted to rape her in 2006 or 2007. However, she managed to escape on that occasion.
6. Subsequently, in 2014 when she returned to Indonesia from Hong Kong for a visit, she learned that her father had borrowed 50 million rupiahs from a loan shark and that they had agreed that she would have to marry the loan shark if her father failed to repay the loan. A couple of days later, the loan shark forced his way into her home and attempted to rape her. He covered her mouth with a chemical substance. The applicant fainted. After the attempted rape by the loan shark, the applicant returned to Hong Kong in July 2014 to continue her employment, and has not returned to Indonesia since.
7. In 2016, the applicant’s father found out from neighbours that she was a lesbian, and was very angry about that. She feared that he would kill her because her sexual orientation has violated her family’s Islamic faith.
8. In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds. Hence, the applicant’s appeal to the Board against the Director’s Decision.
9. On 30 April 2019, the applicant attended a hearing before the Board, during which she gave oral testimony.
10. The Board found that the applicant’s evidence was not credible, due to discrepancies in her oral testimony and documentary evidence. During the hearing, the Board drew her attention to a number of such discrepancies. However, she was unable to provide a satisfactory explanation. The Board therefore attached very little weight to her evidence. Nevertheless, the Board proceeded to consider her allegations in light of country of origin information (“COI”). Based on the COI, the Board found that state protection would be available and internal relocation would be viable. The Board concluded that there was no real risk of harm. Thus, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.
Legal principles applicable to judicial review
11. 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 conclusion
12. The applicant’s Form 86 and supporting affirmation did not contain any grounds for seeking relief. In her supporting affirmation, she merely stated that she feels unsecure about staying in her home country because she is afraid of what her family would do to harm her.
13. At the hearing, this court asked the applicant whether she had any grounds she wished to submit in support of the Leave Application. The applicant said she had nothing to say.
14. The findings stated in [10] above are findings of fact, which the court in a judicial review will not interfere with. 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 all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. The applicant’s written grounds do not condescend to particulars neither did her advance any grounds at the hearing. 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.
15. 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.
Order
16. The Leave Application be dismissed.
Dated the 6th day of June 2025
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(Alfred Chan)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 6/6/2025
Rina Ani Rosidah
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 6/6/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11283/18/4/293/I1296
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 475/18 (formerly RBCZ/10485/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] This refers to the risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap.115.
[2] This refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”).
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[5] This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293.
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