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

HCAL 737/2020

[2025] HKCFI 172

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 737 of 2020

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 Susan Susilowati (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 31 March 2020 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 16 September 2019 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“NRC”).

Background of the Applicant

2.  The Applicant is an Indonesian. She was born on 22 March 1983 in Central Java, Indonesia. She received 12 years of education and had worked as a foreign domestic helper in Singapore and Hong Kong.

The NRC

3.  The Applicant claimed that she was born in a poor family. Her family wanted her to marry a rich man to improve the family’s financial condition.

4.  In May 2007, a loan of IDR 100 million (“Loan”) was taken out under the Applicant’s name. The monthly interest was IDR 5 million and the principal and interest of the Loan would become due in two years. The Applicant said a member of the mafia (“Creditor”) lent her the money, but she had forgotten his name.

5.  The money from the Loan was applied towards the education of the Applicant’s sisters. The Applicant went to Singapore to work between June 2007 and June 2009. When she returned, her parents asked her to marry a rich man (“Y”). The Applicant refused and her mother beat her.

6.  In around August 2009, the Creditor came to the Applicant’s home with three men. The Applicant was alone at that time, and the Creditor grabbed her collar and threatened to kill her if she did not pay back the Loan. They then left voluntarily (“Incident”).

7.  In October 2009, the Applicant came to Hong Kong to work as a foreign domestic helper As recently as April 2019, the Applicant learnt that the Creditor was still looking for her and that her parents still wanted her to marry Y.

8.  The Applicant claimed that she would be harmed or killed by the Creditor if she were returned to Indonesia. She also feared that her family would force her to marry Y.

Procedural history

9.  The Applicant last arrived in Hong Kong on 29 December 2009 to work as a foreign domestic helper. She was required to leave Hong Kong on or before 18 October 2010 after the premature termination of her employment. She overstayed and was arrested by the police on 1 December 2010.

10.  By two letters written in December 2010, the Applicant lodged a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT Claim”). For a period of time, the CAT claim was not processed due to the non-cooperation and disappearance of the Applicant. The Applicant was arrested again on 11 April 2019 for taking up unauthorized employment. By written representations dated 29 April 2019 and 27 May 2019, the Applicant restored her non-refoulement claim. Her non-refoulement claim which included the CAT Claim (ie the NRC) was processed under the Unified Screening Mechanism (“USM”).

11.  The Director had considered the NRC on all applicable grounds under the USM, namely:

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

(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” and “BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of BOR (“BOR 3 risk”); 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 (“persecution risk”).

12.  By the DOI Decision, the Director refused the NRC. 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.

13.  On 22 April 2020, the Applicant filed the Form 86 dated 9 April 2020 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 Director and the Board as the proposed respondents.

14.  On 9 September 2024, the Applicant wrote a letter to the court (“Letter”) requesting to withdraw this judicial review application. She stated that she was safe to return to Indonesia and that she wished to return as soon as possible (“Withdrawal Application”).

The DOI Decision

15.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that the Creditor intended to harm the Applicant. This was because the Creditor never harmed her or her family in Indonesia. The Creditor could have harmed the Applicant in the Incident if he had a real and strong intention to do so but he did not hurt her.

16.  The Applicant’s parents did not seriously harm her or forcibly arrange her to marry Y. The Director did not accept that any ill-treatments, either physical or mental, inflicted upon the Applicant by her family attained a minimum level of severity such that non-refoulement protection was warranted. The Director was of the view that on totality, the adduced evidence did not establish any substantial ground to believe that there would be a foreseeable and real risk that the Applicant would be subjected to serious harm from her family upon her return to Indonesia.

17.  The Applicant did not leave her home or Indonesia immediately after the Incident and did not report to recognizance to the Immigration Department since September 2012 to pursue the CAT Claim. The Director found her such behaviours not consistent with a person who was genuinely in fear of being harmed or killed and thus wished to seek protection at reasonable and available opportunity.

18.  The problems that the Applicant had with her family and the Creditor were private disputes. There was no indication that the state of Indonesia was involved in, indifferent to or had provided any form of encouragement to them in threatening and harming the Applicant. Her departure from Indonesia with her own passport without hindrance in October 2009 revealed that she was not a target of the Indonesian government. There were no substantial grounds to believe that any actions by the Applicant’s family or the Creditor had been or would be inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

19.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that reasonable state protection would be available to the Applicant, if necessary. There were COI showing that the Indonesian government advocated women rights and provided services for women victims.

20.  The Applicant’s asserted problems were assessed to be localized. She could freely move to Jakarta and live there without encountering any difficulties and subsequently departed from Indonesia. The Director did not accept that the Creditor or the Applicant’s family had any strong network in Indonesia and could mobilize their resources, if any, to search for the Applicant throughout the country. The Director found that internal relocation would be viable to the Applicant. If the Applicant moved to Jakarta, Bali or Surabaya, the Creditor would have great difficulties in locating her. After considering her age 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 NRC.

The Board’s Decision

22.  The Board proceeded on the basis that the Applicant’s evidence related to the Creditor and her family was true. However, the Board did not accept that the Applicant’s parents or the Creditor would harm her or kill her if she were to return to Indonesia or that she faced risk throughout Indonesia. The Board also did not accept that the Applicant suffered injuries to the required severity or that the state of Indonesia was unwilling to help her.

23.  The Applicant had been away from Indonesia for around 11 years by the time she appeared before the Board. The Board found no evidence of any current risk to the Applicant. The Board was of the view that both the Creditor and the Applicant’s family were unlikely to be interested in pursuing her upon her return after all these years. There was no evidence that the hostility had been maintained all these years and both groups had likely moved on with their lives.

24.  The Board further found that there was no reason for the Creditor to kill the Applicant upon her return to Indonesia given his interest would be to recover the remaining Loan.

25.  The Applicant was able to escape from her parents and the Creditor in the past and stayed in Jakarta without encountering them. Her problems were localized. There was no evidence to show that the Creditor might have the countrywide networks to track down the Applicant nor her parents would expend resources to search for the Applicant. The Board found that the Applicant could safely relocate to Jakarta or Surabaya.

26.  After carefully considered the COI, the Board further found that state protection would be available to the Applicant. She could also seek assistance from both government and non-government organizations which provided services to women vulnerable to violence.

27.  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

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

29.  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.”

30.  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

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

32.  In the Supporting Affirmation, the Applicant only stated: “Affirmation for leave to apply for judicial review for my non-refoulement claim decision again [sic] the Director of Immigration dated final.” She did not exhibit any supporting document to the Supporting Affirmation nor state any reasons or grounds for her application. Although the Applicant stated in the Supporting Affirmation that she intended to apply for judicial review against the Director, in the Form 86, she referred to the venue for hearing before the Board as address of the interested party and the Board’s decision of dismissing her appeal against the DOI Decision as the subject decision for her application. She also named the Board as one of the proposed respondents. It is clear that the Applicant intended to seek judicial review against the Board’s Decision in this case. I proceeded to deal with this application on such basis. In any event, I have also considered the DOI Decision in dealing with this application.

33.  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.

34.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

35.  The Director did not believe that the Creditor or the Applicant’s family would harm her. Reasonable state protection and internal relocation would be available and viable to her. The Board made similar findings of facts in the Applicant’s case. The Board found that her fear for the persecution risk was not well-founded. She had not shown that there were substantial grounds for believing that if refouled, there would be a real or substantial ground for believing that she would be subjected to a real risk of the BOR 2 risk or the BOR 3 risk. The Applicant also failed to satisfy the elements of torture as defined in section 37U of the Ordinance. The Board further found that both the Creditor and the Applicant’s family were unlikely to be interested in pursuing the Applicant upon her return to Indonesia after her leaving Indonesia for more than 10 years.

36.  It was on such basis that the Director and the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are findings of fact which are exclusively within the province of the Director and 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 DOI Decision or the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The DOI Decision and the Board’s Decision do satisfy the enhanced Wednesbury test. They are not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable.

The Withdrawal Application

37.  The Applicant applied to withdraw this application for judicial review by the Letter stating that she was safe to return to Indonesia and she wanted to go back home as soon as possible.

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

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

40.  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

41.  In the premise and having considered the Board’s Decision and the DOI 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 NRC, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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