KIKI DYAH AYU WULANDARI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1663/2023

[2025] HKCFI 1421

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1663 of 2023

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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Madam Kiki Dyah Ayu Wulandari (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 9 December 2022 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 24 May 2022 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is an Indonesian.  She was born on 30 January 1994 in East Java, Indonesia.  She received 12 years of education and had 6 years of work experience as a hawker and a foreign domestic helper.

The Claim

3.  The Applicant claimed that she faced risks from two creditors in Indonesia (“Creditors”) because of outstanding loans (“Loans”).  The Applicant claimed that she borrowed 250 million Indonesian Rupiahs from the 1^st Creditor at a monthly interest of 1 million Indonesian Rupiahs.  She borrowed the same amount from the 2^nd Creditor at a monthly interest of 1.8 million Indonesian Rupiahs.  Both Loans were taken out in around 2012 to help setting up a mini market business with the Applicant’s father.

4.  The Applicant came to Hong Kong to work as a foreign domestic helper in around 2016 and again in 2018.  She returned to Indonesia in November 2018.

5.  After returning to Indonesia, the Applicant learnt that her parents had moved away, so she stayed with her mother-in-law.  Later, two associates from the 1^st Creditor came to the house of the Applicant’s mother-in-law to collect the loan with the 1^st Creditor (“1^st Loan”).  They took away two of her motorcycles and threatened to kill the Applicant unless she paid back the 1^st Loan.  After then, the two men continued to harass the Applicant and search for valuables at the house of her mother-in-law every two weeks.

6.  In one incident, the Applicant was tied to a pole when she tried to stop the men from searching her mother-in-law’s house (“Pole Incident”).  She suffered bruises because the ropes were tied too tightly.

7.  In around August 2019, the Applicant received a call from a man who identified as an assistant of the 2^nd Creditor.  He vowed to kill the Applicant’s family if she did not pay back the loan with the 2^nd Creditor (“2^nd Loan”).  The Applicant received threatening calls from him from time to time.

8.  The Applicant made a police report at the local station against both Creditors, but the police did not take any follow-up action.  The Applicant decided to come to Hong Kong to work as a foreign domestic helper to pay back the Loans. 

9.  After arriving in Hong Kong on 27 February 2020, she received another call from an assistant to the 2^nd Creditor, when she was told to pay back the 2^nd Loan within 5 months or she would be killed.

10.  The Applicant claimed that she would be harmed or killed by the Creditors if she were returned to Indonesia.

Procedural history

11.  The Applicant last arrived in Hong Kong on 27 February 2020 to work as a foreign domestic helper.  She was required to leave Hong Kong on or before 22 November 2021 after the premature termination of her employment.  She overstayed and was arrested by the Immigration Department on 29 December 2021.

12.  By a written representation of 8 January 2022, the Applicant lodged the Claim.  The Director had considered the Claim on all applicable grounds under the unified screening mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Ordinance”) (“torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the BOR (“BOR 3”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“Refugees Convention”) (“persecution risk”).

13.  By the DOI Decision, the Director refused the Claim.  The Applicant later filed an appeal/petition to the Board (“Appeal”).  By the Board’s Decision, the Board affirmed the DOI Decision.  The Board rejected and dismissed the Appeal.

14.  On 18 September 2023, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision.  The Applicant filed her supporting affirmation on the same day (“Supporting Affirmation”).  In the Form 86, the Applicant named the Board as the proposed respondent and the Director as the interested party.

15.  By a letter dated 11 September 2024, the Applicant sought to withdraw this intended judicial review application stating that her problem in Indonesia had been solved and it was safe for her to go back to Indonesia (“Withdrawal Application”). 

16.  The Director subsequently informed the court that the Applicant had been removed in October 2024. 

17.  As the Applicant had been removed from Hong Kong in October 2024, I decided to deal with the Applicant’s application for leave for judicial review on papers. 

The DOI Decision

18.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that the Creditors intended to harm the Applicant.  This was because other than the Pole Incident, the Applicant had never been harmed by the Creditors.  Despite the lack of payment by the Applicant, the Creditors only threatened her verbally and other than the Pole Incident, did not cause her or her family in Indonesia any harm.  Instead, the Creditors had given her more time to pay back the Loans. The threats against the Applicant appeared to be calculated to put pressure on her to pay back the Loans and the Director did not believe that the Creditors intended to make good their threats.

19.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that the Indonesian government was able and willing to protect the rights of its citizens and reasonable state protection would be available to the Applicant, if necessary.

20.  The Director further found that internal relocation would be viable.  If the Applicant moved to Jakarta or Bali, it would be difficult for the Creditors to locate her.  After considering her education and work experience, the Director found that it would not be unduly harsh to expect her to relocate and lead a normal life.

21.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

22.  The Board found at §47 of the Board’s Decision that the threats from the Creditors were means to put pressure on the Applicant to pay back the Loans and the Creditors had no intention to carry out their threats at all.

23.  The Board also found no evidence suggesting that the Creditors had any association with any political parties, government officials or police.  There was no evidence suggesting that the Creditors were powerful or resourceful enough to locate the Applicant had she moved to stay in places other than her hometown. 

24.  After a careful consideration of the COI, the Board found that state protection would be available to the Applicant upon her return to Indonesia. It also found that internal relocation to Jakarta or other parts of Indonesia outside of her hometown would be viable to the Applicant.  With her age, education and work experience, it would not be unduly harsh to expect her to relocate outside of her hometown to avoid the threats from the Creditors, which were localized.

25.  In §§40-57 of the Board’s Decision, the Board considered the Claim under each of the applicable grounds under the USM.  The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM.  The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

26.  In a judicial review, the court does not step into the shoes of the decision makers.

27.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The 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 Board: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

28.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

29.  The Applicant filed the Form 86 on 18 September 2023.  

30.  Order 53 rule 4(1) of the Rules of the High Court (“RHC”) provides that:

“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

31.  The Board’s Decision was issued on 9 December 2022.  As such, the Applicant should have filed the Form 86 latest on 9 March 2023.  The Form 86 was filed on 18 September 2023.  It was late. 

32.  The Applicant was late by more than 6 months.  This is a substantial and inordinate delay.  The Applicant provided no explanation for the late filing of the Form 86 in the Form 86 itself or in the Supporting Affirmation. 

33.  In considering whether to extend time for applying for leave for judicial review, the court shall have regard to, inter alia, (i) the length of the delay; (ii) explanation for the delay; (iii) merits of the substantive application; (iv) prejudice; and (v) question of general public importance.  (Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration & anor CACV 63/2015)

34.  The Applicant made no application for time extension to file the Form 86 and provided no explanation for the late filing of the Form 86.  As such, I have no basis to extend the time for the Applicant to file the Form 86.

35.  In the Po Fun Chan case (supra), Litton NPJ opined at §52 of the judgment that where an application was made many months after the time limit mentioned in order 53 rule 4 of the RHC, the judge was entitled to refuse leave, however strong the complaint might otherwise be. 

36.  As such, this application is liable for dismissal on the ground of delay.  For the sake of good order and completeness, I shall also consider the merits of the Applicant’s application before deciding on how to dispose of the matter.

37.  In the Form 86, the Applicant did not put forward any ground for her intended judicial review.

38.  In the Supporting Affirmation, the Applicant maintained that her life was still under threat if she were to return to Indonesia.  She put forward the following grounds for her intended judicial review:

(1)  the Adjudicator did not consider her claim and directly dismissed her claim;

(2)  she had submitted documents in her mother language to the Adjudicator but the Adjudicator did not accept them because he could not understand;

(3)  she requested time to arrange for translation of her documents but “my officer had no time”; and

(4)  the translator/interpreter was not helpful and asked her not to take long time for interview.

39.  In the Supporting Affirmation, the Applicant only exhibited a copy of the Board’s Decision without other supporting documents.  The aforesaid grounds were mere bare assertions without particulars or supporting evidence.  Without particulars and supporting evidence, such grounds are not reasonably arguable.

40.  The Board had considered the Claim and set out reasons for its findings and rulings in the Board’s Decision.  I do not see how the Applicant may substantiate her assertion in the Supporting Affirmation that: “Adjudicator did not consider my claim.  Adjudicator directly dismissed.  He did not even take time or did not think about my life.”

41.  There was no records in the Board’s Decision that the Applicant had documents to submit at the Appeal hearing.  The Applicant provided no particulars nor supporting evidence to substantiate her complaints. 

42.  In §39 of the Board’s Decision, the Board recorded that at the Appeal hearing, the Applicant adopted all the information contained in the hearing bundle and confirmed that they were all true and correct.  There was no mention of the Applicant requesting to submit further documents to the Board at the Appeal hearing.

43.  Furthermore, the Applicant had not specified in the Supporting Affirmation what further documents submitted had been rejected by the Board nor exhibited such documents to the Supporting Affirmation.  The Applicant’s such assertions were only vague and bare assertions.  I find no merits in her such complaints.

44.  The Applicant complained that the interpreter did not assist her.  In §39 of the Board’s Decision, the Board recorded that it had clarified certain matters with the Applicant at the Appeal hearing.  This showed that the Applicant had provided information required by the Board through the interpreter.  If the interpreter had failed to assist her at the screening interview before the Immigration Officer or at the Appeal hearing before the Board, she could raise that with the interviewing officer or the Board.  There was no record of such complaints. 

45.  I see no merits in the Applicant’s complaint on the language issue.

46.  No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affirmation.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters. 

47.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am 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 standard of proof; correctly identified the issues and observed high standards of fairness. 

48.  The Board found that there was nothing in the Applicant’s case that suggested that her alleged ill-treatment fell within the meaning of “torture” under Section 37U(1) of the Ordinance.  Therefore, the Applicant had failed to establish that there were substantial grounds for believing that she would be liable to be subjected to the torture risk if she were to be sent back to Indonesia.

49.  Although the Applicant had been attacked once in the Pole Incident, the injuries were minor and she had never been attacked by the 2^nd Creditor.  The Board did not find that the Applicant would be subjected to the kind of ill-treatment contemplated in the BOR 3 had she been sent back to Indonesia and there was nothing in her case that supported her claim under the BOR 2.

50.  The Board found that the Applicant’s case had nothing to do with any of the issues referred to in Article 33 of the Refugees Convention and her claim under the persecution risk also failed.

51.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the applicable grounds under the USM.  These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality.  In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review is not reasonably arguable. 

The Withdrawal Application

52.  The Applicant subsequently made the Withdrawal Application stating that her problem in her country had been resolved and it was safe for her to return to her country.  She wanted to return to her country as soon as possible.  She asked to withdraw this application for judicial review.

53.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of her own volition.

54.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

55.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

56.  The Form 86 was filed out of time without leave from the court nor with satisfactory explanation for the late filing.  Having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss her application for leave to apply for judicial review.

57.  As the court had been notified by the Director that the Applicant had been removed from Hong Kong in October 2024 and the Applicant has not informed the court of any change of her address for service, the court will send a copy of this judgment and the sealed order to the Applicant at her last address on records with a copy set to the Director and request the Director to use his best endeavor to forward them to the Applicant.

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