|
HCAL 2171/2020
[2025] HKCFI 5733
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2171 OF 2020
|
BETWEEN
|
| |
Yuliana Mairis |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board |
Putative |
| |
|
Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. 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 29 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the Torture Claims Appeal Board (“the Board”)’s decision dated 15 October 2020 (“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/2020/HCAL002171_2020_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s non-refoulement claim failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 24 January 2020 and confirmed the same.
The applicant’s case
3. 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.
4. In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be killed by a loan shark named Zainudin due to her inability to repay a loan of 35 million Rupiahs.
Oral hearing
5. The applicant requested for an oral hearing of the Leave Application and her case was heard on 28 October 2025.
6. When this court asked the applicant for the grounds for her intended judicial review, the applicant merely said that her mother had a lot of debts and she worked in Hong Kong to repay the debt. After working for 4 months, her employer terminated her employment and hence she was afraid of going back because she could not repay the loan.
Grounds for judicial review
7. 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).
8. However, the applicant did not assert any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 29 October 2020. She only stated in the affirmation that she did not agree with the Board.
9. What the applicant said at the oral hearing before this court is not a valid ground for the intended judicial review at all.
Discussion
10. 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).
11. The applicant’s alleged problem in her own country had been duly considered by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.
12. This court notes that there was a different version of who owed the debt given by the applicant at the oral hearing before this court. She told this court that her mother owed a lot of debts, but when the Board was assessing her case, she stated that the loan was borrowed under her name and it was arranged by her mother. Nevertheless, it is not for this court to receive new evidence in a judicial review (see Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090). Thus, this court will not consider this new allegation that her mother owed a lot of debts.
13. However, despite the lack of any valid ground being advanced by the applicant for the intended judicial review, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality.
14. In assessing the appeal by the applicant, the Board arranged an oral hearing on 5 June 2020 and the applicant was present. Thus, the applicant did have the opportunity to present her case to the Board in person.
15. As can be seen from the Board’s Decision, the Board did give detailed reasons as to why it concluded that the applicant had not made out a case for non-refoulement protection on all the applicable grounds under the USM. The fear of the applicant only arose from her inability to repay a loan, which was a private and personal matter. She had never encountered any physical assaults inflicted by Zainudin. The ill-treatment she received did not attain a minimum level of severity. There was no element of state acquiescence. Her fear of ill-treatment did not fall within any of the Convention categories.
16. The Board also found from reliable country of origin information (“COI”) that the Indonesian authorities had taken measures to improve the quality of Indonesian police and administrative efficiency. Should the applicant report to the police, the police would have been able to provide assistance to her.
17. Further, the Board found that there were many viable alternatives for the applicant to relocate to other cities in Indonesia. There was no evidence to show that Zainudin was so powerful and resourceful in locating her across the entire country. Being an able-bodied woman who received around nine years of education with extensive work experience, it was feasible for the applicant to relocate and earn a living elsewhere in order to avoid Zainudin and his subordinates.
18. The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
19. 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.
20. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
21. For reasons aforesaid, the Leave Application is dismissed.
Dated the 25th day of November 2025
| |
( Irene LEE )
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:
|
|
|
|
|
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)).
|
|
Sent/Handed to the applicant/the applicant’s solicitors on:
25 November 2025
Applicant’s ref. no:
Nil |
|
Sent/Handed 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:
25 November 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 16775/20/3/3/I1828
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1034/19
(Formerly RBCZ 10764/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
|