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

HCAL 779/2023

[2026] HKCFI 2801

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 779 of 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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 22 May 2023 for leave to apply for judicial review (the “leave application”) of a decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 16 May 2023 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 28 July 2022 (the “Notice”), refusing her application for non‑refoulement protection.

The Applicant’s claim

2.  The Applicant is an Indonesian national, now aged 47.  She arrived in Hong Kong on 22 July 2018 to work as a foreign domestic helper.  She overstayed since 11 January 2022.  She was arrested on 24 May 2022 for overstaying.  Then, she lodged a non-refoulement claim on 28 May 2022.  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].  It 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.

3.  Her personal background, the factual background leading to the present application, the basis of her claim and 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 she will be harmed or killed by her husband and a moneylender for refusing to pay her husband’s debt owing to the moneylender.

4.  The Applicant’ claim as asserted in her non-refoulement claim form (“NCF”) and record of screening interview (“ROI”) is as follows.  She was born and brought up in Probolinggo, Indonesia.  She married her husband in 2000 and has two daughters.  She had worked as a factory worker, a self-employed person selling lunch boxes and as a foreign domestic helper in Singapore and later in Hong Kong.  In 2016, she gave money to her husband to buy a house in Selatan, Indonesia.  She moved to live there with her family and her mother-in-law.  Her husband became a rubber plantation worker.  In June 2016, the Applicant returned to Selantan after completing her contract in Singapore. She had a quarrel for an hour with her husband because she did not like his friends. Her husband pointed a machete at her neck, but did not injure her.  In July 2016, the Applicant came to work in Hong Kong.  Nothing eventful happened until May 2020 when she received a WhatsApp message from the moneylender informing her that her husband had borrowed money from him and that her house had been seized to repay the debt.  The moneylender also demanded her to pay the outstanding balance of the debt.  She refused.  The moneylender threatened to kill her, if she returned to Indonesia.

5.  Thereafter, the Applicant blocked the moneylender’s telephone. She also changed her telephone number in January 2022.  Since then, she never heard from the moneylender or her husband.  Her family relocated to Balikpapan.

The finding of the Board

6.  The Board noted that the Applicant did not promptly seek protection in Hong Kong after receiving the threat, but only did so after more than four years when she was arrested for overstaying.  The Applicant said she would not have sought protection but for the fact that her employment had been terminated.  The Board considered that inconsistent with the mindset of a person in fear of returning to her home country.  It consider her delay in seeking protection a negative factor damaging her credibility. 

7.  The Applicant testified before the Board and gave an account which is significantly different in material aspects from her account in the NCF.  She claimed she would also be harmed by her husband, but no allegation of threat had been made in her NCF or her ROI.  It is also inconsistent with her testimony that her husband only requested her help to settle his debt but did not make any threat against her.  She also denied receiving any message from the moneylender demanding payment of her husband’s debt.  She said she learnt about the threat from her daughter in 2020 when her daughter informed her that the moneylender had told her that he had seized the house and will kill her if the loan was not paid.  When confronted with the inconsistencies, the Applicant became evasive and could not answer the Board’s question in a straight forward manner.  The Board considered the multiple and significant inconsistencies and suspicious allegations undermined the reliability of the Applicant’s evidence.  It did not find her credible.  It found her case vague and unbelievable.  Nevertheless, the Board accepted the Applicant’s personal and family background and that her husband might have purchased a house.  All other matters asserted were not accepted, in particular her evidence about the threat from the moneylender.  As noted above, the Applicant no longer maintained that her husband had threatened to kill or harm her.  On that basis, the Board assessed the level of risk of harm to the Applicant to be low and found that she would not be faced with any real risk of harm upon her return to Indonesia. 

8.  The Board also assessed the Applicant’s claim in the alternative, assuming what she asserted were true.  It found her dispute with the moneylender is a private monetary dispute in which the Indonesian government was not involved or was indifferent to any risk of harm to the Applicant.  On her evidence, her family members were not hurt or harmed at all and had never been faced any physical harm from the moneylender throughout, not to mention one which attained the minimum level of severity.  It found the harm fell outside the meaning of ‘torture’ under section 37(U) of the Immigration Ordinance. It found the risk of harm did not arise on account of the Applicant’s race, religion, nationality or membership of a particular social group or political opinion.  It found the dispute and related matters were and are all confined to the Applicant’s local area and that she could avoid the risk of harm by relocating to other areas away from her husband and the moneylender.  Applying the law applicable to non-refoulement protection, it found the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds under the USM. 

9.  For the above reasons, the Board dismissed the Applicant’s appeal against the Notice.

The legal principles applicable to judicial review

10.  The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[6].

Grounds for judicial review

11.  At the hearing, after the above legal principles had been explained to her, the Applicant confirmed that she had no complaint about errors of law, procedural unfairness or irrationality in the Decision and would leave it to the Court to scrutinize the Decision for those vitiating elements.  In her supporting affirmation, she advanced the following grounds:

(1)   the Board did not consider her claim.  It directly dismissed her claim and “did not even taking time or did not think about [her] life;”

(2)   she submitted some documents in Balsa Indonesian, but the Board refused to accept them because it did not understand the documents;

(3)   she requested ‘him’ to give her time to translate the documents into English, “but the officer had no time;”

(4)   “the translator did not help [her] at all.  If [she] did not understand he became angry”;

(5)   “interpreter asked me to not take long time for interview as he had another job”.

12.  These grounds contain very serious allegations against the conduct of the Board, the interpreter and presumably an immigration officer as well.  But the Applicant was unable to provide any particulars.  In answer to the Court’s enquiry in respect of her Ground (1), she said she is scared going back to Indonesia because her life would be at risk.  She could not say anything which could support her complaint.  The oral hearing was heard on 8 May 2023, the Board’s Decision was issued eight days later on 16 May 2023.  By any standard, that is very fast, but by no means unusual.  Reading the Decision, this Court is satisfied that it is not a hasty decision.  The Court is satisfied that the Board had considered all the relevant issues and adequately covered all the concerns of the Applicant.  The speed of deliberation is not indicative of lack of thorough consideration.   The Court will bear this complaint in mind in its overall scrutiny of the Board’s Decision.

13.  The Applicant was evasive in response to the Court’s request for particulars relating to the other grounds.   In answer to the Court’s request for particulars under Ground (2), she replied that she did not understand that ground.  She denied she had given any documents to the Board.  She said what is written under that ground is incorrect.  Her Grounds (2), (3), (4) and (5) are inter-connected.  They are ambiguous.  It is not clear who she was complaining, whether it was the interpreter during the screening interview or the interpreter at the time of the oral hearing before the Board, or the interpreter assisting her in completing the NCF or the immigration officer processing her application.  Her answer is that she “forgot”.  There is no way that this Court could understand what her complaints are and to consider the veracity of her complaints.

14.  In the absence of any specific grounds of application, the court in a judicial review could only scrutinize the Decision for errors of law, procedural unfairness or irrationality.

Overall scrutiny

15.  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.  The Board considered the Applicant’s evidence vague and lacking in particulars.  It found her incredible and her evidence unreliable.  It accepted part of her evidence about her personal and family background and that her husband might have bought a house.  Because of the multiple and significant contradictions in her evidence, it rejected the rest of her evidence, in particular the threat from the moneylender.  These are findings of fact and finding of credibility which are solely within the realm of the Board, which the court in an application for judicial review may not intervene.  The Board gave full reasons for its finding.  On the evidence, it was open to the Board to make those findings as it did. 

16.  Even if the Board were wrong (which this Court disagrees), it assessed the Applicant’s claim on the basis of the case as she asserted, the inferences it drew from those facts and the COI.  Applying the law applicable to non-refoulement protection to those facts, the Board came to the conclusion that the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  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 failed to discharge her burden of proving her fears and risks. 

17.  Thus, either way, the Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

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

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