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

HCAL 3800/2019

[2025] HKCFI 1360

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3800 of 2019

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

Following:

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

1.   Form 86 be amended accordingly on my own motion that TCAB should be the putative respondent, and the DOI should be an interested party; and

2.   Leave to apply for Judicial Review be dismissed.

Observation for the Applicant:

Introduction

1.  By a Form 86 filed on 19 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision dated 11 October 2018.  Although she did not name any proposed respondent in the Form 86, the Torture Claims Appeal Board (the “TCAB”) was named as an interested party.

2.  According to the papers filed for this application, there was a decision by the TCAB dated 6 December 2019 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 28 September 2018 refusing the Applicant’s non-refoulement protection claim.

3.  As such, I take it that the Applicant is seeking judicial review of the TCAB Decision (which is dated 9 December 2019, not “11 October 2018”) and thus TCAB should be the putative respondent, and the DOI should be a putative interested party.  I amended the Form 86 accordingly on my own motion.

4.  The Applicant did not ask for a hearing of this application and hence I proceeded to deal with it on paper.

Background

5.  The Applicant is an Indonesia national and had worked in Hong Kong as a domestic helper.  She first submitted a Torture Claim Form back in March 2013 and in September 2018 submitted a Supplementary Claim Form seeking non-refoulement protection.  The basis of her claim had remained the same in both instances, i.e. she will be harmed or even killed by her husband’s creditors in Indonesia.

6.  Her personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

7.  In a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision‑makers.  This court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676).

8.  In her affirmation filed in support of the Form 86, the Applicant has only repeated the fear for her life if she is returned to Indonesia, where the debt collector will be able to find her.  She has not pointed to any error of law, procedural unfairness or irrationality of the TCAB Decision.

9.  As can be seen from the TCAB Decision, the Applicant’s written and oral evidence were all put forward before the TCAB [13-37].  The TCAB carefully analysed such evidence in arriving at its conclusion that the alleged risk of harm was not made out [38-72].

10.  The TCAB then proceeded to analyse each of the three applicable grounds under the USM in this case, applying in each instance the correct legal principles to the available evidence, and found none of them established [73-96].  For completeness, the ground of torture was no triggered in this case as the Applicant did not claim protection under that ground in her Supplementary Claim Form seeking non-refoulement protection.

11.  I have not detected any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

12.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review.  I therefore dismiss the application.

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