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

HCAL 2510/2024

[2025] HKCFI 599

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2510 of 2024

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;            or
	consideration of the 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 18 December 2024 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 18 November 2024 dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his notice of decision dated 31 July 2024 dismissing her application for non-refoulement protection. Her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].

The Applicant’s case

2.  The following account of the Applicant’s claim is mainly based on the information in her non-refoulement claim form (“NCF”) prepared by her with the assistance of the Duty Lawyer Service and record of screening interview in the presence of her lawyer. In gist, she claims that she will be harmed or killed by a loan shark for being unable to repay a loan.

3.  The Applicant is an Indonesian national, now aged 44. She had nine years of formal education and about ten years of working experience. She was married in 1996 and has three children currently living in Indonesia. She lived in a house inherited from her parents in 2012. The house was then worth 200 million Indonesian Rupiahs (“INR”).

4.  Her husband went missing since early 2020. In late 2020, a staff member of the BRI Bank of Indonesia visited the house claiming that her husband had raised a loan from the bank using the house as collateral and showed her the house certificate. The staff member said his visit was to verify if the house existed.

5.  Nothing eventful occurred until January 2023 when a staff member of the bank visited again and informed her that the bank would seize the house in March 2023 as her husband had defaulted in payment. The outstanding balance of the loan was 50 million INR.

6.  Then through the introduction of her friend, the Applicant borrowed 50 million INR at a monthly interest of 5 million INR from a loan shark to repay the bank. Under the oral loan agreement, there was no fixed date for repayment of the principal. She was able to pay interest until August 2023 because the employment agency had deducted HK$2,300 for six months from her salary for settling her passage to Hong Kong, her employment was also terminated in that month and she was unable to find new employment.

7.  She was told by her elder son that the loan shark visited her house in January and February to collect payment. By then, the outstanding loan accumulated to 115 million INR. The loan shark threatened to take away the house or kill the Applicant if she failed to repay.

8.  She said that though her two elder sons were working, they do not have the means to repay the loan for her. She did not think the police could provide her with round the clock protection and that she had no financial means to relocate to other places in Indonesia.

The finding of the Board

9.  The Applicant testified before the Board. The Board found many inconsistencies and contradictions between her testimony before the Board and her evidence in the NCF. The Board considered her evidence that she immediately accepted the existence of the loan from the bank and her agreement to repay doubtful. The same is not supported by any documentary evidence. Having regard to the amount of the loan, the absence of any prior relationship between the Applicant and the loan shark, the absence of any documentary evidence and collateral, the Board found her evidence about the loan from the loan shark highly suspicious. Further, on her evidence, the loan shark took no action against her even after she had defaulted in payment for nine months. The Board considered such behaviour on the part of a loan shark rendered her account unbelievable.

10.  The Board found the Applicant was not telling the truth. It had great doubts about the husband’s loan from the bank and strong reservation as to the existence of the loan shark and/or the loan from the loan shark. It did not accept the alleged two visits by the loan shark to her home and the threats made to her through her sons on those occasions.

11.  It found in the alternative that even if the loan shark and the threats existed (which is not accepted by the Board), the loan shark had no intention to kill the Applicant; the threats were made only to pressurise her to repay; and in any event, the effect or risk of the threat was localised to her home area. It also found that the Applicant’s problem with the loan shark is a totally private/personal matter which does not involve the Indonesian government or authorities at all. Neither the Applicant nor her children suffered any injuries from the loan shark.

12.  Having considered all the circumstances, the Board found that there is no ground to believe that the Applicant will be subjected to serious harm/torture if she returns to Indonesia. Applying the law applicable to non-refoulement protection to the facts found, the Board found the Applicant had failed to prove the factual basis to support her claim for non-refoulement protection under any of the four applicable grounds under the USM. Furthermore, the Board found on the basis of country of origin information that adequate state protection and internal relocation are available to the Applicant to reduce or avoid the harm or risk of harm. Hence, it dismissed her appeal against the decision of the Director in the Notice.

The legal principles applicable to judicial review

13.  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[5].

Grounds for judicial review

14.  The Applicant did not put forward any grounds of application for judicial review in her Form 86. In her supporting affirmation, she only exhibited a copy of the Decision. After the above legal principles had been explained to her during the hearing, she confirmed she has no complaint about errors of law in the Decision and left it to the Court to look for such errors on her behalf. She also confirmed that she had no complaint about procedural unfairness and irrationality in the Decision. She only reiterated that she did not want to go back to Indonesia because there is no guarantee on her safety. In effect, she is seeking to challenge the Board’s finding of fact that she had failed to prove that she would face real harm or real risk of harm if returned to Indonesia. For reasons as explained in the above paragraph, this is not permissible in an application for judicial review. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

Discussion and conclusion

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 analysed the evidence properly, tested it against common sense and inherent probability. It found the Applicant incredible. It accepted partly of his evidence only. It gave detailed reasons for its finding. In brief, it accepted the background of the claim as asserted by the Applicant but rejected her evidence about her husband’s loan from the bank, her loan from the loan shark to settle the outstanding bank loan and the threats made by the loan shark. These are findings of fact which the Court may not interfere. It also found in the alternative that even if her account is accepted, the dispute between her and the loan shark are personal disputes, the Indonesian government, its public officials were not involved in the ill-treatment inflicted on her, the ill-treatment did not attain the minimum level of severity and that adequate state protection and internal relocation are available to her to reduce or avoid the harm or risk of harm. It was on that basis that the Board found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the 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 his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. 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

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