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

HCAL 455/2022

[2026] HKCFI 4210

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 455 of 2022

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 the Applicant’s submissions in open court;

1.  The Form 86 be amended to name (a) the Board as the putative respondent; (b) the Director of Immigration as a putative interested party; and

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  By a Form 86 filed on 10 June 2022, the Applicant sought leave for judicial review of the decisions of the Director of Immigration (“DI”) dated 25 November 2021 (“DI’s Decision”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 2 June 2022 (“the Board’s Decision”).

2.  As a matter of law, the DI’s Decision has been superseded by the Board’s Decision. The present application should only focus on the Board’s Decision. Paragraph 1 of the Orders above is thus made on the Court’s own motion.

3.  The Board’s Decision was made after a hearing on 5 May 2022, which was attended by the Applicant. A copy of the Board’s Decision can be seen by the following hyperlink[1].

4.  The Applicant is an Indonesian national who previously worked as a foreign domestic helper in Hong Kong. Her non-refoulement claim was based on the alleged risk of harm from a moneylender known as SELAMAT. The Applicant claimed that her mother had borrowed an amount equivalent to HK$80,000 on her behalf to finance her late father’s emergency medical treatment. It was said the moneylender had affiliation with gangsters.

5.  The Applicant asserted that because she failed to pay the monthly interest at 10% of the borrowed sum, the moneylender vandalized her home, subjected her to persistent verbal death threats and attempted a physical assault on her with a wooden stick. It was further said that systemic administrative corruption and the Indonesian Police’s refusal to intervene in private debt disputes prevented her from obtaining effective State protection.

6.  The Board dismissed the Applicant’s appeal/petition because her claim was found to be fabricated. Such finding was in turn based on numerous internal inconsistencies in the Applicant’s version of events regarding, inter alia, the timing of her father’s illness and admission to hospital, details about the repayment of loan and the lack of loan documentation. Furthermore, the Board ruled that even if the Applicant’s narrative were true, the claim would have still failed because (i) objective country information confirmed that the Indonesian Government had provided effective State protection against illegal lenders; (ii) the verbal threats she had received failed to meet the minimum level of severity required for torture under the Immigration Ordinance or risks under the Hong Kong Bill of Rights (“HKBOR”); and (iii) internal relocation within Indonesia’s vast territory remained a safe and reasonable alternative.

7.  The Applicant does not request an oral hearing for the present application. She has stated a few grounds on which relief is sought in her Form 86, which are summarized as follows. The Applicant has applied some of the grounds to the DI’s Decision, but by the reasons explained above, I shall only focus on the challenges against the Board’s Decision.

8.  First, it was complained that the Board’s Decision was Wednesbury unreasonable and irrational because the Board wrongly assessed the Applicant’s claim and failed to safeguard her right to life under Article 28 of the Basic Law and Article 2 of the HKBOR against a real risk of extra-judicial killing (“Ground 1: Wednesbury Unreasonableness & Right to Life”).

9.  Secondly, it was said the Board had failed to recognize state acquiescence and a breach of the duty of due diligence, ignoring evidence that the feared harm was executed at the behest of State law enforcement agencies and those in the “high-ups” of political circles (“Ground 2: State Acquiescence & Due Diligence”).

10.  Thirdly, it was said the Board over-relied on country of origin information (“COI”) and ignored the Applicant’s personal history (“Ground 3: Reliance on COI”). Fourthly, it was said the Board should not require the Applicant to respond to questions that she was not in a position to offer any response (“Ground 4: Procedural Unfairness”).

11.  Having vigorously considered the Applicant’s grounds and the Board’s Decision, I am of the view that none of the grounds is reasonably arguable.

12.  In relation to Ground 1 (Wednesbury Unreasonableness & Right to Life), the Board directed itself on the correct legal threshold, explicitly noting in paragraphs 14 and 20 its duty to assess the claims under a standard of proof which is lower than general civil standard but observe a high standard of fairness. The Board then evaluated the facts and assessed the Applicant’s case with respect to each applicable ground accordingly. I am unable to detect any irrationality in the Board’s analyses.

13.  As to Ground 2 (State Acquiescence & Due Diligence), the Board carefully analyzed whether any State element was involved in the Applicant’s alleged plight and explicitly found that no such connection existed. The Board noted that the Applicant left Indonesia through normal immigration channels in paragraphs 69 and 70; it was also said there is no evidence to show that the moneylender had connection with Indonesian Police or authorities in paragraph 94. Furthermore, the Board addressed the issue of State protection in paragraph 98, determining that according to objective COI, the Indonesian Government was both able and willing to provide reasonable protection against illegal loan sharks. This Court is of the view that the Board had properly applied the established principles of State protection and acquiescence, meaning that this ground merely amounts to a disagreement with the factual findings of the Board but not a real complaint of legal error.

14.  This Court finds no substance in Grounds 3 and 4 (Reliance on COI and Procedural Unfairness). The Board had conducted an oral hearing to give the Applicant a reasonable opportunity to explain her case. Based on its assessment of several major aspects of the Applicant’s claim, the Board found the claim not credible. The assessment was not based on anything beyond her knowledge, but on the internal contradictions regarding her own narrative. The Board was entitled to draw negative inferences from a witness who was found to be unreliable. In these circumstances, there was also nothing wrong for the Board to place more weight on COI than the Applicant’s own assertions as to whether Indonesia would provide State protection.

15.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any future risk of ill-treatment exists if an applicant returns to his/her home country lies with the Board. In the absence of any errors of law, procedural unfairness or irrationality, this Court would not reopen the TCAB’s findings or make a determination on the case afresh. The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246). The leave application is accordingly dismissed.

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