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

HCAL 2450/2019

[2025] HKCFI 1796

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2450 of 2019

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 23 August 2019 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 22 August 2019 (the “Decision”) and the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 20 May 2019 (the “Notice”) refusing her non-refoulement application.

2.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures. The Director’s decision in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. In the circumstances, the Applicant’s leave application as regards the decision of the Director in the Notice is refused. The Court only considered her leave application as regards the Board’s Decision.

3.  The hearing was heard on three occasions. At the first hearing on 26 February 2025, the Court explained the law applicable to judicial review to the Applicant, explored the grounds of application with her, and heard her submission. The hearing was adjourned for decision. Then, the Applicant returned later in the morning and applied to re-open her application to enable her to arrange legal representation. She gave a strong assurance that she will instruct a private lawyer to act for her. The Court allowed her application and adjourned the hearing for one month to 26 March 2025.

4.  At the second hearing, the Applicant was unrepresented. She said her solicitor had come to the registry to search the court file to prepare for the hearing, but was informed that the file was with the judge. Impliedly, she suggested her solicitor was unable to prepare for the hearing. She said her solicitor told her to appear by herself and inform the Court of the situation. She produced a WhatsApp message exhibiting a file search receipt. While accepting that her solicitor, or more probably a clerical staff of her solicitor had come to court for a file search, the Court was unable to accept he was denied access to the court file for the reason she suggested. The court staff are under strict instructions to make the files available for search. If the file of this particular case was with this Court at the time of the search, this Court would not have no knowledge about it or would not have withheld it from search. Anyway, giving her the benefit of doubt, this Court granted her another adjournment for about three weeks with a warning that if she could not appear with legal representation at the adjourned hearing, the Court will, nevertheless, proceed with the hearing.

5.  At the third hearing on 14 April 2025, the Applicant appeared again unrepresented. She said she could not afford instructing private legal representation and had applied for legal aid. She asked for a further adjournment to await the result of her legal aid application. Having regard to the procedural history, the Court was not satisfied that was a bona fide application.

6.  Her application for non-refoulement protection had been refused by the Director and the Board. She filed the leave application in August 2019. She must have known this is her last chance to challenge the Board’s Decision refusing her claim for protection and that she will be refouled if her leave application was unsuccessful. She should take the proceedings seriously. But she took no steps to seek legal representation in the past five and half years. She acted by herself at the first hearing. It was only after her leave application was adjourned for decision that she returned to ask to re-open her leave application to enable her to be legally represented. She has been in Hong Kong for 19 years. She must have some knowledge about the legal aid service, particularly in view of her involvement in this type of litigation with which legal aid service is often associated. She specifically asked for adjournment to enable her to seek private legal representation. She had made a conscious decision to seek private legal representation and not legal aid. She gave strong assurance that she will seek private legal representation. She gave an unconvincing explanation for the absence of legal representation on the second hearing. Even at that stage, she gave no indication that she could not afford private representation or had to apply for legal aid. Then she applied for legal aid five days before this hearing. Her conduct carried the hallmark of an abuse of legal process. Her application for adjournment was not a bona fide one, but an attempt to delay her refoulement process. Having considered also the Decision, her grounds of application, her submissions in all the hearing before this Court, the applicable legal principles, the Court is of the opinion that she could competently represent herself within the limitations imposed by the facts of her case. Having regard to the underlying objectives stated in Order 1A rule 1 of the Rules of the High Court, and the need to ensure that cases before the court are dealt with as expeditiously and as reasonably practicable and with a sense of reasonable proportionality and procedural economy, her application for adjournment was refused.

7.  Though the Memorandum of Notification of an Application for Legal Aid has not yet been filed with the Court, accepting that she had applied for legal aid on 9 April 2025, her leave application shall be stayed until 20 May 2025, pursuant to Section 15 and Regulation 7A of the Legal Aid Ordinance. For reasons as explained above, despite those provisions, the Court uplifted the stay and continued with the hearing.

Background

8.  The Applicant is an Indonesian national. She first entered Hong Kong to work as a foreign domestic helper (“FDH”) on 26 April 2006. She last arrived in Hong Kong from Macau on 31 December 2011 and overstayed since 31 December 2015 after her employment was prematurely terminated. On 20 February 2019, she was arrested by the police for overstaying and was referred to the Immigration Department. She made a non-refoulement claim on 3 March 2019. In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5]. Her application 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

9.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (the “NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claims that if returned to Indonesia, she will be harmed or killed by her husband for failing to meet his demand for money and by a loan shark who had lent money to her husband; her life will be at stake as she could not pay the medical expenses for treating her medical condition, namely AIDS; and she will not be able to get employment because of severe discrimination against AIDS patients.

10.  The Applicant, now aged 52, was born in Central Java, Indonesia. She is married with a daughter. Her divorce application is pending. Her widowed mother, three siblings, husband and daughter are living in Indonesia. She received formal education for six years and had 27 years’ working experience in Indonesia, Malaysia, Singapore, and Hong Kong.

11.  She claimed that she and her husband had quarrels over his gambling and womanizing habits. He slapped and punched her when he was drunk. She self-treated the injuries at home and did not report the assaults to the police. She later discovered her husband had taken out loans from a loan shark, totalling 150 million Indonesia Rupiah. He was heavily in debt and constantly demanded money from her. To stay away from him, she went to work overseas.

12.  Whilst working in Hong Kong, she remitted money to her husband almost every month for repaying the loan. Yet, he kept calling her for more money. She returned to Indonesia only once since working in Hong Kong. During her two weeks’ holiday in Indonesia, the loan shark went to their home to demand repayment and assaulted her husband. The loan shark left after she gave him some money. Upon her return to Hong Kong, she kept receiving calls from her husband demanding money. She was annoyed and had quarrels with him. Over the phone, he threatened to kill her if she returned to Indonesia. After her employment was terminated in December 2015, she could no longer remit money to him. But, he kept calling her for money and threatened to kill her. Hence, she stayed in Hong Kong as she felt her life would be at risk returning to Indonesia. She changed her phone number in 2018, and since then, she had no more contact with her husband.

13.  She said she is suffering from lung disease and AIDS, and needs regular medication and medical attention. She said she would be deprived of necessary medication and treatment, if refouled to Indonesia. She also claimed she would be stigmatised and discriminated as people suffering AIDS.

14.  The Applicant claims that state protection is not available because the police in Indonesia is corrupt. She does not believe internal relocation viable, as she does not have the financial means to settle in other parts of Indonesia.

The finding of the Board

15.  There are two aspects of the Applicant’s claim. The first one is the risk of harm from her husband and the loan shark arising from her husband’s loan. The second is the risk of harm to her life arising from lack of treatment of her own medical condition, stigmatism and discrimination.

16.  The Applicant testified before the Board. In respect of the first aspect of her claim, her evidence on the loan was scanty. She could provide no proof of her remitting money to her husband to repay the loan. While saying that her husband had threatened to kill her for failing to meet his demand for money, her husband did nothing to harm her family when the demand was not met. She gave confusing and conflicting evidence as to how she lost contact with her family, when she changed her telephone number, when her husband lost contact with her, and whether the loss of contact was because she changed her telephone number or because she rejected his calls. Her evidence was so confusing and conflicting that the Board doubted its reliability of her evidence and was not satisfied that she had lost contact with her family at all. Because of the multiple and significant inconsistencies in her evidence, the Board found her incredible and did not accept she has proved the primary facts in respect of the risk imposed by her husband and the loan shark.

17.  Despite the above finding, the Board also assessed her risk of harm from her husband and the loan shark on the basis of her claim as she asserted. But, it found her evidence did not indicate she would face any risk of torture or ill-treatment from her husband as the injuries she suffered did not attain the degree of severity as to amount to ‘torture’ under the Convention Against Torture and Other cruel, Inhuman or Degrading Treatment or Punishment, nor was there any involvement by the government or person in authority. It also found the loan shark had not actually assaulted or harmed her for not being able to repay her husband’s debt. He only assaulted her husband in her presence.

18.  The Board understood the second aspect of her claim arising from her own health conditions is a very peculiar one. Bluntly put, the Applicant is arguing that in view of her medical condition and the non-availability of medical treatment in her home country, refoulement in the circumstances is putting her in her grave. This aspect of her claim is not founded on her right to non-refoulement protection but on the host country’s obligation under Article 3 of the European Convention on Human Rights (“ECHR”) not to expel a person who is not entitled to non-refoulemment protection and is seriously ill. The Board researched extensively into the law relating to interpretation of Article 3 of the ECHR. It referred to leading authorities, including N v Secretary of State for the Home Department[6] and D v UK[7]. It found from the case of N that on its proper construction, Article 3 does not impose any obligation on the host country to provide medical care to a claimant even in the absence of which her life would be significantly shortened, unless there are exceptional circumstances. It also distilled from these authorities that the following factors are relevant in determining whether there are exceptional circumstances:

(i)  whether the claimant is at the final stage of her illness;

(ii)  whether she would have family members to look after her in her home country; and

(iii)  whether AIDS drugs are available to the general population in her home country.

19.  Having directed itself to these principles, the Board assessed this aspect of the Applicant’s claim on the basis of her case as she asserted. It accepted the Applicant had lung dicease in 2018 which is basically healed; that she is an AIDS carrier without any symptom; and that she has been put on oral medication and is being monitored monthly by a government clinic. Her condition is not serious at all. The Board found she was not at the final stage of her illness.

20.  The Board did not accept that the Applicant had for some vague and evidence of doubtful credibility (such as poor telecomunical signal) suddenly lost contact with her family as she alleged in her NCF. It found there was no reason for her to hide her contact number from her family. The Applicant has two brothers, one sister, a mother and a daughter then aged 13 (now 18). It found the Applicant’s situation is not one in which she would not have any family members to take care of her in her home country.

21.  The Board also found on the basis of authoritative and credible country of origin information (“COI”) that free medical treatment for AIDS patients is available in Indonesia and there are clinics at provincial level that provide such treatment. There is no evidence to suggest that the Applicant would be denied access to medical treatment for AIDS in Indonesia. In addition, the Indonesian government, together with UNAIDS, World Health Organisation and other non-governmental organisations are exerting considerable efforts to increase the coverage of medical treatment for AIDS and to eliminate stigmatism and discrimination against AIDS patients. The Applicant admitted she had heard about Jaminan Kesehatan National (national Social Health Insurance Scheme) which help needy patients who could not pay for the medical expenses, but she was not convinced that she would be benefited. She admitted hearing about the Indonesian government allotting funds to clinics to provide drugs and vaccines, support for basic services and prioritized programmes such as tuberculosis and AIDS, but was not convinced that the service was as good as what had been said about it. She was sceptical about the availability of such services, but had no personal knowledge to support her scepticism. The Board was satisfied that drugs for treating AIDS are available to the general population in Indonesia.

22.  On the evidence, the Board was satisfied that the Applicant’s medical condition does not constitute any exceptional circumstances as to prevent her expulsion from the host country. On the basis of the COI, it was also satisfied that various forms of state protection are available, such as police protection against violence, the authorities’ protection against social stigmatization or discrimination against AIDS carrier in Indonesia. It was also satisfied that internal relocation is an additional option available to avoid any risk of harm. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support her claims 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

23.  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[8].

Grounds for judicial review

24.  After the legal principles in the precedent section had been explained to her, the Applicant reiterated that she wanted to stay in Hong Kong, that she is already married here; that she has medical problems which cannot be cured in Indonesia. She asked to be allowed to stay so that she can obtain a visa. None of these are arguable grounds for judicial review.

25.  In her Form 86, the Applicant advanced the following five grounds in Form 86:

(1)  the Director’s and the Board’s decisions are unfair and unreasonable;

(2)  the Director failed to give proper weightage to the presence of state acquiescence;

(3)  the Board acted unreasonably and procedurally unfairly by placing too much reliance on the COI but failed to take her personal background and experience into account or to give enough weight to such argument and COI supporting the Applicant’s case;

(4)  the Director had failed to take such argument into account or give enough weight to such argument;

(5)  the Director failed to attain the high standard of fairness;

(6)  the Board was procedurally improper and unfair when assessing her explanations and asking questions that she was not in a position to respond; and

(7)  the Board ought to have allowed her appeal instead of dismissing it.

26.  The grounds provided by the Applicant are very familiar to this Court, as it has seen similar or even identical grounds in other applications. The grounds appear like a template submission without regard to the actual facts of the case. They are worded in broad and general terms and lacking in particulars. When asked for particulars, the Applicant was unable to provide them. She did not even seem to understand the grounds. Eventually, she said the grounds were prepared by a lawyer and she did not understand. There is no need to deal with these un-particularised and non-specific grounds. 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 irrationality in the Decision. These matters will be covered in the following section.

Overall scrutiny

27.  There are two aspects in the Applicant’s claim, ie the risk of harm from her husband and the loan shark and the risk of harm to her life arising from her own medical condition, stigmatism and discrimination. 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 and a host country’s obligation relating to expulsion of seriously ill claimants; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

28.  In respect of the first aspect of her claim, the Board analysed her evidence carefully, tested it against common sense and inherent probability. Because of the multiple and significant inconsistencies in her evidence, the Board found her incredible and refused to accept she has proved the primary facts in respect of the risk imposed by her husband and the creditor. These are finding of fact. It also found in the alternative that even on the basis of her account of the events, the Applicant is not entitled to protection under any of the grounds. These are mixed finding of fact and of the law.

29.  The Board understood the peculiar nature of the second aspect of the Applicant’s claim. It researched extensively into the law relating to interpretation of Article 3 of the ECHR and identified the factors to be taken into account in determining what constitute exceptional circumstances which are sufficient to impose an obligation not to expel a seriously ill claimant. It then assessed the Applicant’s claim on the basis of her case as she asserted. The Applicant could not have any complaint about such finding of fact. The Board then found on the basis of the COI that free medical treatment for AIDS patients and state protection against stigmatization and discrimination are available in Indonesia, and that she could avoid the risk of stigmatization and discrimination by internal relocation. It also found as a fact from the Applicant’s evidence that she is not at the last stage of her illness and that there are family members in Indonesia who may look after her. These are also finding of fact. Based on these finding of fact, it made a further finding of fact and of the law that there are no special circumstances in the present case to justify imposing an obligation against the Applicant’s expulsion on seriously ill grounds.

30.  It was on these basis that the Board found the Applicant had failed to establish the factual and/or legal basis to support her claim for non-refoulement protection under any of the applicable grounds under the USM. 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. This 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 his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

31.  For the above reasons, the 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