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

HCAL 1183/2022

[2025] HKCFI 573

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1183 of 2022

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 an application by Madam Indaryanti Sella (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 21 October 2022 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 28 October 2021 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is an Indonesian. She was born on 20 December 1986 in Indramayu, West Java, Indonesia. She received 9 years of education and had 15 years of work experience as a foreign domestic helper.

The Claim

3.  The Applicant claimed that she would be harmed or killed by a gangster (“K”) if she were returned to Indonesia. She claimed that K was a husband to her stepmother. However, in September 2017, her stepmother asked the Applicant to marry K because her stepmother could not bear a child for K. When the Applicant refused, K hanged the Applicant’s grandmother (“Grandmother”) by the neck and the Applicant agreed to the marriage to save Grandmother.

4.  The Applicant married K in October 2017 and was repeatedly raped by K. The Applicant fled to her friend’s home in Karangpoman in October or November 2017, but K went to her friend’s home with 6 other men and took her back. K tied her limbs with ropes and cut her right wrist with a knife. The Applicant’s stepmother also slapped her.

5.  About five days later, an unknown man visited the Applicant’s home and Grandmother shouted for help. The man did nothing, but K cut the left wrist of the Applicant twice with a knife and warned her not to talk to anyone.

6.  Five days later, that was three weeks after the Applicant’s marriage to K, an unknown person walked around the Applicant’s home village to recruit people who were willing to work as a domestic helper in Hong Kong. K asked the Applicant to take up employment in Hong Kong so she could send money to K.

7.  While the Applicant was working in Hong Kong, K threatened to kill Grandmother if the Applicant refused to send money to K. The Applicant sent 7 million Indonesian Rupiah to Grandmother via her stepmother when she was working as a foreign domestic helper. The Applicant asked Grandmother to talk to the village head for a divorce with K.

8.  After learning about the remittance and the attempt to divorce him, K took all 7 million Indonesian Rupiah and threatened to kill Grandmother if the Applicant sought a divorce. Grandmother passed away on 20 October 2020.

Procedural history

9.  The Applicant arrived in Hong Kong on 27 September 2018 to work as a foreign domestic helper. She was required to leave Hong Kong on or before 29 November 2020 after the premature termination of her employment. She overstayed and surrendered to the Immigration Department on 21 December 2020. By a written representation of 20 January 2021, the Applicant lodged the Claim.

10.  The Director had considered the Claim on all applicable grounds under the Unified Screening Mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“Refugees Convention”).

11.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

12.  On 1 November 2022, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed her supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Board as the proposed respondent and interested party.

The DOI Decision

13.  The Director noted that the low intensity and low frequency of past ill-treatment from K was indicative of a small future risk of harm upon the Applicant’s return. Further, the injuries she suffered from K were not serious. K and his associates had the opportunities to seriously harm or kill the Applicant in the past, but they refrained from doing so. This showed that K did not really intend to kill or seriously harm the Applicant.

14.  There was no indication that the Indonesian government was involved in, indifferent to or provided any form of encouragement to K in threatening or harming the Applicant. The fact that the Applicant was able to leave Indonesia to come to Hong Kong for work indicated that she was not an adverse target of the Indonesian government nor did the Indonesian government have any adverse interest in the Applicant. On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that reasonable state protection would be available to the Applicant, if necessary.

15.  There was insufficient evidence suggesting that K had the ability and resources to track the Applicant down everywhere in Indonesia. The Director assessed that the threats from K, if any, were limited and localized. The Director found that internal relocation would be viable. If the Applicant moved to Jakarta or Surabaya, K would have great difficulties in locating her. After considering her age and work experience, the Director found that it would not be unduly harsh to expect her to relocate and lead a normal life.

16.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

17.  After considering the Applicant’s claims including her written evidence, the record of her interview, her notice of appeal and her oral evidence given at the hearing before the Board, the Board formed the view that the Applicant was not a witness of truth and found that she could not establish any facts for seeking non-refoulement protection. The reasons for these findings had been detailed in §§15-45 of the Board’s Decision.

18.  After considering the Applicant’s evidence, the Board found the Applicant’s account about her marriage with K and the assaults on her and Grandmother vague, general and unsubstantiated and the Board did not accept her such evidence (§§28-36 of the Board’s Decision). There was also no reliable evidence that the alleged acts of torture had inflicted on the Applicant pain or suffering of certain severity or gravity (§47 of the Board’s Decision).

19.  The Board applied the aforesaid findings of fact and assessment to the consideration of the Claim. The Board found that the Applicant’s fear was not well-founded and she could not bring herself within any of the grounds enumerated in the definition of “refugee” in Article 1A(2) of the Refugees Convention. The Board also did not accept that the Applicant would be subjected to torture if deported from Hong Kong. The Board did not foresee any circumstance and did not accept the Applicant’s assertion that she would be in danger of being subjected to arbitrary deprivation of life or BOR 3 risk if deported from Hong Kong.

20.  The Board found that K was not acting on behalf of the Indonesian government and he perpetrated the alleged abuse on the Applicant by his own volition.

21.  The Board further found that the Indonesian police was not aware of K’s actions because the Applicant never reported K. There was no evidence to suggest that the Indonesian police would acquiesce to K’s actions or withhold protection from the Applicant if they had learnt about them. The Board found that state protection would be available to her upon her return (§103 of the Board’s Decision).

22.  The Board also found that divorce and internal relocation were both permissible under Indonesian law. The Board found insufficient evidence to substantiate the Applicant’s assertion that K had extensive network and power that could locate the Applicant wherever she moved in Indonesia. The Applicant could safely relocate to other cities in Indonesia, such as Jakarta, Surabaya or Bali to avoid K. There was no evidence that K’s influence extended beyond the home village of the Applicant (§106 of the Board’s Decision). With the Applicant’s education and work experience, it would not be unduly harsh to expect her to relocate.

23.  The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

24.  In a judicial review, the court does not step into the shoes of the decision makers.

25.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“ The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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 Board: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

26.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

27.  The Applicant did not advance any grounds for her intended judicial review in the Form 86. In the Supporting Affirmation, the Applicant complained that the Board and the Director had not properly considered the due diligence required from her home country in providing protection to her (§4 of the Supporting Affirmation). The Applicant referred to Re JKF (CACV 103/2014).

28.  In Re JKF, it was held that it might be reasonably arguable that the ineffectiveness of the machinery of government in preventing domestic violence provided substantial grounds for believing that the protection claimant would be in danger of being subjected to torture. Re JKF concerned a case in Sri Lanka.

29.  In this case, the Board had considered the issues of state protection and state acquiescence in some details including the effectiveness of the Indonesian criminal legal system in the context of COI before finding that there was no active or passive acquiescence on the part of the local police, a reasonably effective criminal legal system existed in Indonesia, and reasonably sufficient state protection was available to the Applicant in Indonesia. (See sections D5 and E1.2 of the Board’s Decision)

30.  Further, the Board had referred to Re Esmerez Maria Nieva Gelito (CACV 200/2018) in §70 of the Board’s Decision to illustrate cases where the concept of state acquiescence and duty of diligence would apply. The Applicant’s case does not fall within the category of such cases (§91 of the Board’s Decision). Re JKF does not assist the Applicant and this ground is not reasonably arguable in the Applicant’s case.

31.  The Applicant also referred to risk of harm faced by her from moneylender because she failed to repay a loan (§§5 and 6 of the Supporting Affirmation). At the court hearing on 8 January 2025 (“Hearing”), the Applicant confirmed that her case did not involve loan or moneylender.

32.  In the Supporting Affirmation, the Applicant referred to risk of ill-treatment faced by her family members (§9 of the Supporting Affirmation) but she confirmed at the Hearing that her only family member, i.e. Grandmother, had already passed away in October 2020, i.e. 2 years before filing of the Supporting Affirmation.

33.  In the Supporting Affirmation, the Applicant also complained that the Board had failed to take into consideration psychological strain and threats suffered by her (§7 of the Supporting Affirmation). At the Hearing, the Applicant confirmed that her only psychological strain was demand for money by K over the phone. She further confirmed that she had not sought medical treatment for her psychological strain. After considering evidence adduced before the Board, the Board concluded in §101 of the Board’s Decision that: “There is no reliable evidence that the [Applicant] had suffered ill-treatment, physically or mentally, of certain severity or gravity.”

34.  The Applicant further stated in the Supporting Affirmation that she could not relocate to other places because K could easily trace her wherever she hid in Indonesia (§8 of the Supporting Affirmation). She did not agree to the Board’s finding that she would not be at risk of being subjected to the torture risk or the BOR 3 risk.

35.  In section C2.3 of the Board’s Decision, the Board had considered the power and network of K before concluding that the Board did not accept the Applicant’s claim that K was a powerful gangster with extensive network and power.

36.  In section G of the Board’s Decision, the Board had duly considered the issue of internal relocation in the context of COI. The board had also considered in sections E and F of the Board’s Decision the torture risk and the BOR 3 risk before the Board reached the conclusion that it did not accept that the Applicant would be in danger of being subjected to the torture risk and the BOR 3 risk.

37.  As pointed out in the Nupur Mst case (supra), assessment of COI materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board and the Director. The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board. The fact that the Applicant did not agree to the findings of the Board and/or the Director per se is no ground for challenging such findings.

38.  I see no merits in the proposed grounds advanced by the Applicant. The Applicant’s proposed challenge to the findings of fact by the Director and/or the Board is not reasonably arguable.

39.  No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters. At the Hearing, the Applicant confirmed that she did not find any error of law, procedural unfairness or irrationality in the Board’s Decision.

40.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

41.  The Board found that the Applicant was not a witness of truth. After considering her evidence, the COI and all circumstances of her case, the Board found insufficient evidence that the Board might rely on to accept the Applicant’s material assertions. Her explanations, for the discrepancies or inconsistencies of evidence regarding those material assertions in her claim form, the record of her interview with the Immigration officer and her oral evidence in the hearing before the Board, were found to be unsatisfactory. The Board did not accept that the Applicant had been ill-treated as alleged or at all. In any event, the Board found that the Applicant could safely and reasonably relocate to other areas in Indonesia upon her return to avoid her perceived risk of harm and reasonable state protection would be available to her.

42.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable.

Conclusion

43.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with a realistic prospect of success, I accordingly dismiss this application for leave to apply for judicial review.

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