ERMAWATI FITRI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1139/2023

[2026] HKCFI 3624

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1139 OF 2023

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

1.  On this court’s own motion, the name of the putative interested party be amended to “Director of Immigration”.

2.  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 10 July 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 23 June 2023 (“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/2023/HCAL001139_2023_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claim for non-refoulement protection in Hong Kong were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 3 November 2021, which rejected the applicant’s non-refoulement claim.

Amendment

3.  In Form 86, the applicant named the Board as both the putative respondent and the putative interested party.

4.  In fact, the Board should only be named as the putative respondent, and the Director should be named as the putative interested party.

5.  This court therefore makes an order on its own motion to amend the name of the putative interested party to “Director of Immigration”.

The applicant’s case

6.  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.

7.  In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, her life would be in danger from her violent husband Adi. She also claimed that she still owed 4 months’ payment (or HKD 8,000) to the employment agency Pt. Kafco which arranged her to work as domestic helper in Hong Kong, as her employment was prematurely terminated after she had started working for only 2 months. She feared that her salary deductions would increase if she obtained another placement through this agency.

Disposal on paper

8.  The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

9.  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).

10.  The applicant did not advance any ground for her intended judicial review in Form 86. In her supporting affirmation dated 10 July 2023, under the heading “GROUNDS”, the applicant mentioned a few matters, which are summarized as follows:-

(1)  There was procedural impropriety as the Board failed to consider her claim that she would face real risk from her enemies upon refoulement to her country;

(2)  The Board failed to consider the fact and her fear that her husband was still looking for her to kill her; and she would also face risk from “money lender” for her failure to repay the loan;

(3)  The Board failed to consider her claims under BOR 2 and BOR 3 Risk; and she would be under risk in Indonesia as the authority could not protect her; and

(4)  The Board failed to consider her fear and the country of origin condition that could show the real scene of her country.

Discussion

11.  First of all, the applicant’s alleged risks from her husband, as well as her concerns about her outstanding payment to the employment agency, had been duly assessed but rejected by the Board. If she intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

12.  Moreover, if what the applicant meant by “money lender” in Ground (2) is not the employment agency, her risk from any other money lender arising from any other outstanding loans had not been presented before the Board for assessment of her non-refoulement claim and her appeal/petition.

13.  The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage. As such, Grounds (1) and (2) are not arguable. The applicant cannot ask this court to assess or re-assess her non-refoulement claim based on matters that had not been presented to the Board.

14.  In Grounds (3) and (4), the applicant seems to challenge the Board’s finding on the availability of state protection and the viability of internal relocation. However, despite the Board’s finding that the applicant had not given a truthful account of her claims and its conclusion that the applicant’s claims were rejected altogether, the Board had explicitly laid out in paragraphs 75 to 77 of the Board’s Decision that even if the Board were not confident in these findings, which was not the case, the Board would find that state protection and safe internal relocation would be available to negate any risk to the applicant. The reasons given by the Board were fully justified.

15.  In fact, these findings were finding of facts within the exclusive realm of the Board as the primary decision-maker. This court finds no flaw in these findings.

16.  The applicant’s assertion in Ground (3) that the Board failed to consider her BOR 2 Risk[1] and BOR 3 Risk[2] was simply untrue. The Board had in fact assessed the applicant’s risks against all 4 applicable grounds, ie Torture Risk[3], BOR 3 Risk, BOR 2 Risk and Persecution Risk[4] under the USM, but was not satisfied on the evidence before it that the applicant faced any of these risks.

17.  Thus, all the grounds contained in the applicant’s affirmation dated 10 July 2023 do not amount to any valid ground in challenging the Board’s Decision.

18.  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).

19.  Thus, despite the fact that the applicant failed to advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

20.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 14 October 2022. The applicant was present and was thus given the chance to present her case to the Board in person.

21.  As can be seen from the Board’s Decision, the Board questioned the applicant extensively at the Board’s hearing to try to understand her case better. The Board gave full and detailed reasoning in rejecting the applicant’s claims. Its assessment on the credibility of the applicant’s claims were laid out in paragraphs 59 to 65 of the Board’s Decision, and it is not necessary to repeat the same here.

22.  In gist, the Board was not satisfied that the applicant had given a truthful account due to the many inconsistencies and contradictions between her written claims and her oral testimony at the Board’s hearing. With respect to the applicant’s alleged threat from her husband, even giving the applicant the benefit of the doubt and accepted that the applicant’s marriage might have broken down and there might have been some conflicts in the course of the breakdown, the Board did not accept anything that followed in the applicant’s account about the threat said to be posed by her husband. The Board did not accept that the applicant’s estranged husband had threatened to kill her if she returned to Indonesia and/or divorced him, either directly or conveyed through her father to her in Taiwan or in Hong Kong.

23.  Regarding the applicant’s claimed debt to the employment agency, even though the Board accepted that the debt existed, the Board noted that the applicant conceded herself that all she risked from that organisation was having to repay any debt at a higher rate in the event that they placed her in another job. The Board did not accept that such risk was capable of amounting to serious or significant harm, or indeed otherwise enlivening Hong Kong’s protection obligations on any of the applicable grounds under the USM.

24.  Despite the above findings, the Board of the view that state protection including assistance from the National Commission on Violence Against Women would be available to the applicant upon her return to her country. Moreover, internal relocation was a safe alternative to the applicant. Given the applicant’s education and employment history, the Board found no reason why she could not, if necessary, find gainful employment including through an agency once again. The Board found that it would not be unduly harsh to expect the applicant to relocate.

25.  Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

26.  The finding of facts relating to a non-refoulement claim, including the assessment of evidence, country of origin information and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

27.  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.

28.  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

29.  For reasons aforesaid, the Leave Application is 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