SUAK DEFRY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 823/2021

[2026] HKCFI 379

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 823 of 2021

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 June 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 10 May 2021 dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision (the “Notice”). 

Background

2.  The Applicant is an Indonesian national, now aged 46.  She had worked in Hong Kong as a foreign domestic helper from 1999 to 2001 and since 2011.  She departed Hong Kong on 30 December 2018 after her employment was prematurely terminated.  She re-entered Hong Kong on 18 April 2019 from Mainland China and overstayed since 19 May 2019.  She was arrested on 11 June 2019 for breach of condition of stay and sentenced to one month’s imprisonment.  While serving her sentence, she raised a non-refoulement claim by written signification dated 24 June 2020.  In due course, 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]. Her claim 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.

The Applicant’s case

3.  The Applicant’s personal background, the basis of her claim, 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.  The hyperlink to the Board’s Decision is included below[5] for reference.  She claims in her non-refoulement claim form (“NCF”) that she was born in Minahasa, North Sulawesi in Indonesia in October 1979.  In her written statement attached to her NCF, she claims her parents moved to Bogor, West Java in Indonesia around 1978 to take up employment and lived there since.  Her family is Christian, but Bogor is dominated by Muslim.  Her father died of stroke in 1988.

4.  The Applicant lived in Minahasa from 1991 to 1999 and then worked in Hong Kong from 1999 to 2001.  In 2002, she and her husband together with six others visited her parents’ home in Bogor to announce their marriage. Thinking they were holding a Christian prayer meeting, the Muslims stoned her parent’s house (the “2002 incident”).  A Muslim leader, who was a friend of her father, helped the Applicant’s family to escape to safety.  The Applicant was unharmed. Her mother was scared and passed out.  She was hospitalized for a week and then discharged home as there was nothing more the doctor could do for her medical condition.  Her mother passed away later. 

5.  In 2008, her elder sister’s son, ie her nephew, was found dead with signs of having been violently beaten.  The Applicant went to work in Hong Kong in 2011.  She and her husband separated in 2012/13.  Her sister died of stroke in 2019.   The Applicant claimed her nephew was beaten to death for refusing to marry a Muslim girl and attributed her sister’s, her mother’s and her father’s deaths to pressure by Muslims.  

6.  In her Notice of Appeal, she claims at the end of November 2020 there was a massacre of Christians near her home area.  She produced a newspaper report about burning of houses used as places of worship for Christians reportedly carried out by the Ali Kalora Group.

7.  At the hearing, she said that being a single/separated woman she would be vulnerable if returned to Indonesia.  She also raised her fear that she would be assaulted or raped like women were during the demonstrations in Jakarta in 1998. 

8.  In gist, she claims, if returned to Indonesia, she will suffer harm for being a Christian or a single woman; will be harmed in Bogor for being fair skinned and forced to convert to Muslim and/or to marry a Muslim man, or be tortured or killed. 

The finding of the Board

9.  The Board found aspects of the Applicant’s evidence completely credible.  It assessed her claim on the basis of the factual evidence as she asserted, except the causes of death of her father, mother, her nephew and her sister which the Board considered were her own speculations not supported by evidence.  Despite the Applicant’s family were outnumbered during the 2002 incident, they were able to escape to safety.  The Board found the Muslim community had no real intention to force the Applicant to convert or to marry a Muslim man. 

10.  The Board accepted on the basis of country of origin information (“COI”) that there was ethnic discrimination in Indonesia.  However, it found the Applicant suffered no harm arising from ethnic discrimination while living in Minahasa in 1991 to 1999.   It found she would not likely go to live in Bogor, if refouled.  There was also no evidence to suggest that those who she feared in Bogor had sought to locate her outside Bogor.  It accepted the COI that adequate state protection is available in Indonesia.  The Board found there would be no real risk that the Applicant would face serious or fatal harm for reasons of her ethnicity as a person originating from Minahasa.

11.  In relation to the massacre of Christians mentioned by the Applicant in her Notice of Appeal, the Board referred to other COI quoted by the Director in his Notice.  Those COI reported that religious pluralism is an established part of modern Indonesia and that a wide range of local and international sources consider that inter-faith tolerance remains strong.  On the basis of authoritative and credible COI, the Board found adequate state protection available and that people could practice their religion freely in Indonesia. 

12.  As for her fear about returning to Indonesia as a single/separated woman and the riots in 1998, the Board found that adequate state protection would be available and that the victims in the riots were overwhelmingly Indonesians of Chinese ancestry.  It found the Applicant is not in any way in an analogous position as the victims who were targeted for harm in those riots, including the fact that she is not ethnic Chinese.  The Board found she would not be at risk of the harm she feared.

13.  In conclusion, the Board found the Applicant had not demonstrated that there are substantial grounds for concluding that she would face real risk of serious harm, or torture, or cruel inhuman degrading treatment or punishment, or death, if she returned to Indonesia now or in the reasonably foreseeable future.  Applying the law applicable to the non-refoulement protection under the USM to the evidence available, it found the Applicant had failed to establish the factual basis to support her claim for protection under any of the applicable grounds under the USM.  Hence, it dismissed her appeal against the Director’s Notice.

Legal principles applicable to judicial review

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[6].

Grounds for judicial review

15.  The Applicant did not advance any ground for judicial review in Form 86 nor in her supporting affirmation.  At the hearing, after the legal principle in the preceding section was explained to her, the Applicant confirmed that she had no complaint about errors of law, procedural unfairness and irrationality in the Decision.  But, she said her husband was found dead on the road on 23 January 2024.  Some passers-by took him to a hospital.  Her husband was found to have poison in his blood.  The Applicant said that her husband’s family had asked him to divorce her.  She said her husband’s family will be able to locate her anywhere she goes in Indonesia and harm her.  She is afraid to return to Indonesia.  These are new fears which had never been presented before the Board.  These alleged fears never formed any part of the Board’s Decision.  It is not open to this Court to make any finding on these new fear or to review the Board’s Decision based on these new fears.  If these alleged new fears are genuine, she may raise a subsequent claim; but they could not constitute any valid ground to impeach this Decision.  In the absence of proper grounds or grounds with adequate particulars, the Court in an application for leave to apply for judicial review could only focus its attention on these elements in its anxious scrutiny of the Decision.

Overall scrutiny

16.  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 on balance of probability and the low standard of proof; correctly identified the issues and observed a very high standard of fairness. 

17.  The Board analysed the evidence carefully, tested it against common sense and inherent probability.  The Board basically accepted the Applicant’s evidence but rejected her surmises and speculation. It gave full reasons for the inferences it drew from her factual evidence.  It accepted the Applicant’s claim about ethnic discrimination in Bogor, but found on the Applicant’s own evidence that she had no problem living in Minahasa where she was born.  It found the Applicant would not live in Bogor, if she was refouled.  It also found on the basis of authoritative and credible COI that adequate state protection would be available to the Applicant.  Hence, the Board found she had failed to establish the factual basis to support her claim for non-refoulement protection under any of the four applicable grounds under the USM.  Insofar as this is a finding of the law, it is absolutely correct.  Insofar as it is a finding of fact, it is 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 irrationality in the Decision.  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 had failed to discharge her burden of proving her fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

Conclusion

18.  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