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

HCAL 779/2020

[2025] HKCFI 3919

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 779 of 2020

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 the Applicant being absent in open court;

1.  The Form 86 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent and only the Director of Immigration as the Putative Interested Party;

2.  Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Indonesia. By a Form 86 dated and filed on 27 April 2020 (“Form 86”), and a supporting affirmation also dated and filed on 27 April 2020 (“the Affirmation”), she sought leave for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) dated 17 April 2020 (“TCAB Decision”)[1], which was exhibited to her Affirmation.

2.  The Applicant sought an oral hearing of her application, but did not appear at such. I have hence dealt with her application on the papers.

3.  I have amended the Form 86 to properly identify the putative respondent and the putative interested party. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

Background

4.  This is set out in the TCAB Decision. I will not repeat the contents thereof, but in summary:

a.  The Applicant claims non-refoulement relief on the basis that if she were sent back to Indonesia, she would be ill-treated or killed by her stepfather;

b.  The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 10 April 2019 (“Director’s Decision”);

c.  The Applicant then petitioned/appealed to the TCAB/NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claims on 22 November 2019; and

d.  The TCAB/NRCPO handed down the TCAB Decision on 17 April 2020, in which the decision-maker held that the Applicant was not entitled to non-refoulement relief on any of the relevant bases and confirmed the Director’s Decision.

Legal Principles

5.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

6.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, 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 TCAB/NRCPO. (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

7.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

8.  As the Applicant has not identified or set out any grounds of judicial review in the Form 86 or Affirmation, there is no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

9.  However, given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

10.  The TCAB Decision set out the Applicant’s procedural and immigration history and the relevant bases of risk (Paragraphs 1 to 5). This was followed by the Applicant’s background and claims as made to the Director in her written statements and interview (Paragraphs 6 to 37), and the evidence that she gave to the TCAB/NRCPO (Paragraphs 38 to 52).

11.  The decision-maker then discussed the Applicant’s claims and made his findings of fact. On the evidence he was satisfied that the chance that the Applicant would be harmed, and/or forced to convert to Christianity by her stepfather was very remote, and that the Applicant’s claims of fearing harm in Indonesia were not substantiated. While she was not compelled to relocate to her home area within close proximity of her stepfather, reasonable state protection was available to the Applicant were she to do so. It would also be available if she relocated (which she could do) to other parts of Indonesia to live away from her stepfather (Paragraphs 53 to 67).

12.  The TCAB/NRCPO then turned to the relevant bases of risk. As to Torture Risk, given its earlier analysis as to risk of harm it was not satisfied (having regard also to the issue of state acquiescence) that there were substantial grounds for believing that she would be subject to torture in Indonesia. Persecution Risk was also not established as given its earlier analysis there was no real chance of persecution, and the Applicant’s fears were not well-founded. Similarly, the decision-maker’s earlier assessment as to risk of harm also meant that there was no basis for a finding of BOR 2 Risk and BOR 3 Risk (Paragraphs 68 to 80). He accordingly found that the claims for non-refoulement protection as to each of Torture Risk, BOR 2 Risk, BOR 3 Risk, and Persecution Risk failed and confirmed the Director’s Decision (Paragraphs 81 to 85).

13.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision. This is especially so as to the assessment, reasoning, and findings regarding the risk of harm, state protection, internal relocation, Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk, which are all matters primarily within the province of the decision-making body.

14.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

15.  In the circumstances, I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

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