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

HCAL 679/2021

[2025] HKCFI 2268

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 679 of 2021

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

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 12 May 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 3 May 2021 dismissing her appeal against the decision of  the Director of Immigration refusing her application for non-refoulement protection.  Her non-refoulement 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].

The Applicant’s case

2.  The Applicant is an Indonesian national.  She married her husband, Tujo, in October 2011.  They lived in her mother’s house.  Shortly after their marriage, she borrowed a loan of INR 250 million at a monthly interest of 20% of the principal from the loan shark for opening a boutique for herself and a restaurant for her husband.  After three months, she was unable to pay the monthly interest.  The loan shark and two of his underlings visited her home once to thrice every week to demand payment and threatened her with death if she did not pay. 

3.  She told her husband about the loan and asked for his help.  Her husband was an alcoholic.  He became furious for the Applicant getting him into trouble.  He subjected her to domestic violence.  He slapped her face, punched her and sometimes threatened to kill her while holding a machete.  Once, he pushed her down a staircase when he was drunk and caused a miscarriage.  Her husband became bankrupt.  His restaurant was closed down in December 2011. Her boutique shop was also closed down in January 2012.

4.  In the same year, she came to work in Hong Kong as a foreign domestic helper.  She cut off contact with her husband and the loan shark.  She remitted HK$2,500 to 3,000 to her mother to repay the loan shark.  The loan shark kept asking her mother when the Applicant would return. Her husband who was still living in her mother’s house also kept threatening to kill her.  After her employment was prematurely terminated on 15 April 2016, she did not dare to return to Indonesia for fear of being killed or harmed by her husband and/or the loan shark.  She does not believe the police will help her because she is unable to pay a bribe for their services.  

The finding of the Board

5.  The Applicant testified before the Board.  The Board noted multiple and significant inconsistencies between her testimony and her evidence in her written statement and at the screening interview before the immigration officer, which went to the core of the centrepiece of her claim. In her written statement, she said she married her husband in October 2011; that she borrowed INR 250 million from the loan shark in November 2011; and that the sole purpose of the loan was to open a restaurant and a boutique shop. These conflicted with her testimony that she married at the beginning of 2011; that she borrowed INR 50 million in the middle of 2011; and that the sole purpose of the loan was to open a restaurant for her husband.  When confronted with the inconsistencies, she was unable to give any satisfactory explanation other than that she was confused and was under stress at the time.

6.  When asked when her problem commenced, the Applicant gave an account wholly different from that in her written statement as summarised in the above section.  She said her problem started while she was working in Hong Kong with the loan shark demanding her husband to repay.  This is inconsistent with her written statement that she informed her husband before she came to work in Hong Kong about the loan when she could not pay interest, then her husband became furious and subjected her to domestic violence causing a miscarriage.  Her new account is also implausible because in her written statement she said she had been remitting money home to pay the loan shark.  If so, there was no reason for the loan shark to demand payment from her husband.

7.  The Board also had serious concerns about her marital status.  In her visa application documents, she said she was single. When confronted, the Applicant responded that she had no comment.  The Board was not satisfied that the Applicant was married to a man by the name of “Tujo” or at all.  The contradiction about her marital status went to the core of her claim about borrowing money for her husband to operate a restaurant, the husband’s threat to kill, the miscarriage, etc.

8.  The Board found the Applicant’s behaviour in deliberately remaining unlawfully in Hong Kong for three years without taking any proactive action is not consistent with a person genuinely in fear of harm on returning to her country.  Her behaviour damaged her credibility.

9.  In conclusion, the Board found the Applicant an incredible witness and that she had failed to establish the factual basis to support her claim to non-refoulement protection under any of the applicable grounds under the USM.  Hence, it dismissed her appeal. 

The legal principles applicable to judicial review

10.  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[5].

Grounds for judicial review

11.  The Applicant did not put forward any grounds of application for judicial review in her Form 86.  In her supporting affirmation, she only repeated her fears and asserted that she could not go back to her home country.  In effect, she is seeking to challenge the Board’s finding of fact that she had failed to prove that she would face real harm or real risk of harm if returned to Indonesia.  For reasons as explained in the above paragraph, this is not permissible in an application for judicial review.  

12.  At the hearing, after the legal principles in the preceding section had been explained to her, she confirmed that she had no complaint about error of law, procedural unfairness or irrationality.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. 

Overall scrutiny

13.  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 analysed the evidence carefully, tested it against common sense and inherent probability.  It found the Applicant an incredible witness.  It gave full reasons for its finding.  It was on that basis that the Board found the Applicant 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.  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 his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

14.  For the above reasons, the 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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] [2018] HKCA 524 at [14(1)]