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

HCAL 2304/2023

[2026] HKCFI 4737

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2304 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 oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 20 December 2023 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 15 December 2023 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision refusing her application for non-refoulement protection (the “Notice”).

Background

2.  The Applicant is an Indonesian national, now aged 36. She last arrived Hong Kong to work as a foreign domestic helper on 25 March 2019. Her contract of employment was prematurely terminated on 18 September 2022 and she overstayed since 3 October 2022. She was arrested by the police on 14 December 2022. On 18 December 2022 and 18 January 2023, she lodged a non-refoulement claim by written signification. In due course, her claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Her claim was rejected by the Director’s Notice. Her appeal against the Notice was dismissed by the Board’s Decision. She now applies for leave to apply for judicial review of that Decision.

The Applicant’s case and Board’s Decision

3.  The Applicant’s personal background, the basis of her claim, the arguments she advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below[5] for reference. In gist, she claims, if returned to Indonesia, she will be harmed or killed by her ex-husband for being unable to repay his debt owing to his moneylender. Her case is that her ex-husband borrowed a loan of 100 million Indonesian Rupiah from a moneylender to build a new house as the Applicant’s family home. The Applicant knew nothing about the details of the loan except that she was named as a guarantor. In 2019, she divorced her ex-husband because he physically abused her. After the divorce, her ex-husband came to the Applicant’s parents’ house asking for money to repay the loan and threatened to kill the Applicant and their daughter if she did not pay. He also smashed one of the glass windows of the house (the “Incident”). The Applicant had never seen her ex-husband since the divorce. Her parents and daughter had been staying in her hometown and nothing eventful had happened to them.

4.  The Board assessed the Applicant’s claim as set out in her non-refoulement claim form (“NCF”) and made certain finding of facts on the basis of her case and the country of origin information (“COI”). On the evidence, the Applicant had not met her ex-husband since 2019, and her husband had not exerted threats on the Applicant which attain the minimum level of severity. Of course, the Court notes that the Applicant stayed in Hong Kong since 2019. But other than the Incident mentioned above, nothing eventual happened to the Applicant’s daughter and her parents. The Board found the Applicant’s risk of harm from her ex-husband is low. It also found her ex-husband is a non-state actor and the dispute between the Applicant and her ex-husband was a private dispute in which no public officials or persons able to wield the authority of the government and/or state was involved. It found no evidence that the government and/or state knew about the Applicant’s plight, let alone acquiesce in her ill-treatment, if any. It found no evidence that the Applicant had a well-founded fear of persecution for one or more of the reasons enumerated in the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“Convention reasons”). It found no evidence that the state of Indonesia was unwilling or unable to afford protection to the Applicant or was unwilling to help her for a Convention reason or for any other reason. There was no evidence that the Applicant had sought state protection. It also found on the basis of the COI that reasonable state protection would be available to the Applicant on her return to Indonesia and that being an able-bodied person with her years of work experience she would be able to re-establish herself in her home state or elsewhere in Indonesia and that it would be highly unlikely for her ex-husband to locate her, in case he would.

5.  Applying the law applicable to the non-refoulement protection under the USM to the Applicant’s claim as she asserted and to the further facts it found, the Board came to the conclusion that the Applicant had failed to establish the factual basis to support her claim for protection under any of the applicable grounds under the USM. Hence, it dismissed her appeal against the Director’s Notice.

Legal principles applicable to judicial review

6.  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[6].

Grounds for judicial review

7.  At the hearing, after the legal principles in the preceding section were explained to him, the Applicant confirmed she had no complaints about errors of law and procedural unfairness in the Decision. She reiterated the facts of her case and that she could not repay the outstanding loan. In effect, she is seeking to challenge the Board’s finding of fact. That could not be a valid ground of application. In the absence of particularised grounds of application, the Court in an application for judicial review could only focus on errors of law, procedural unfairness and irrationality in the Decision.

Overall scrutiny

8.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

9.  The Board basically accepted her evidence and made certain finding of facts based on her case, the COI and inherent probability. The Applicant could have no complaint against the Board’s finding of facts. The Board’s findings are mixed finding of law and of fact. Insofar as its finding of law is concerned, the Board is absolutely correct. Insofar as its finding of fact is concerned, it is exclusively within the realm of the Board, which the Court in a judicial review will not interfere, save when such finding was made as result of error of law or procedural unfairness or irrationality in the Decision. The Board gave reasons for its finding. On the evidence, it was open to the Board to make the finding of fact as it did. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant had failed to discharge her burden of proving her fears and risks. The proposed judicial review has no realistic prospect of success.

Conclusion

10.  For the above reasons, the Applicant’s leave application is refused.

Form CALL-1