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

HCAL 2860/2019

[2025] HKCFI 2609

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2860 of 2019

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;

The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 30 September 2019, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 11 September 2019 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 22 November 2017.  (“Director’s Decision”) rejecting the applicant's non-refoulement claim.

2.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 10 June 2025.  Before the hearing, a notice of hearing with a reminder[1] of the consequence of absence dated 12 May 2025 was sent to the applicant’s last known address by ordinary post.  The applicant did not turn up at the hearing.  Several phone calls were made to the applicant’s given telephone number before the hearing, but the calls were not answered.  The information before this court shows that the said notice of hearing has not been returned undelivered through the post.

3.  In the circumstances, this court will dispose of the Leave Application according to the materials already placed before the court.

Background

4.  The background as taken from the Director’s Decision and the Board’s Decision can be briefly stated as follows.

5.  The applicant is a national of Indonesia.  She was employed in Hong Kong as a domestic helper until 5 September 2013 when her contract was prematurely terminated.  She was required to leave Hong Kong by 19 September 2013. However, she did not depart, and overstayed.  On 21 April 2014, she was arrested by police for overstaying.  On 29 April 2014, she was convicted of an offence for overstaying and was sentenced to 4 weeks’ imprisonment suspended for 3 years.  The applicant lodged her non-refoulement claim on 7 May 2014.

6.  The applicant’s claim was considered under all applicable grounds i.e. torture risk^[2], BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5] under the USM.^[6]  The claim was based on a fear that if refouled, she would be harmed or killed by her abusive ex-husband because she divorced him.

7.  According to the applicant, she married him in 1996.  The marriage was initially a happy one.  However, after the birth of their daughter in 1999, he physically assaulted her every day by punching and kicking her.  In 2000, due to his abusive behaviour, the applicant went to Singapore to work as a domestic helper.  In 2004, she went back to Indonesia for a week to file for divorce, which application was granted. The applicant did not encounter her husband at that time.  After her week-long visit, she came to Hong Kong to work as a domestic helper.

8.  Shortly after the applicant filed her divorce petition and had come to Hong Kong for employment, her husband made threatening calls on her mobile phone nearly every day, threatening to kill her.  The threatening calls ceased when she changed her Hong Kong telephone number.

9.  In 2006, the applicant returned to her native village for one week and she did not encounter her ex-husband.  In 2008, her daughter told her that her ex-husband was still looking for her.  However, after an earthquake and tsunami in 2008, she lost contact with her family, including her daughter.  The applicant was not sure if her family survived the tsunami.

10.  In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds.  Hence, the applicant’s appeal to the Board against the Director’s Decision.

11.  On 9 May 2019, the applicant attended a hearing before the Board.  At the Board hearing, the applicant gave oral testimony and answered questions from the Board. 

12.  The Board found that the applicant had any genuine fear of harm from her former husband, whom the applicant divorced in 2005.  It further found that her husband had no intention to harm her upon her return to Indonesia.  In conclusion, the Board found that the applicant would not suffer any risk of harm.  The Board also found that internal relocation would be viable.  Thus, the Board rejected the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

13.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

14.  In her Form 86 and supporting affirmation, the applicant raised the following grounds for judicial review: 

(a)  The Board’s Decision was unreasonable and unfair, while the right to life was protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights;

(b)  Insufficient importance or weight was given to state acquiescence;

(c)  Though the Director listed relevant country of origin information (“COI”) that supported the applicant’s belief that the police in her country would not be able to protect her, such COI was not considered or given enough weight;

(d)  The Director showed an unfair attitude, and failed to meet the required high standards of fairness.

15.  However, the applicant did not provide any particulars for these grounds.

16.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness.  I am satisfied that the Board was entitled to reach the conclusion of lack of risk of harm after it had considered the fact that the applicant had divorced her husband for so long, and that there was no evidence that her husband had any intention to harm her.  The written grounds that the applicant provided neither relate to the Board’s Decision nor do they condescend to particulars. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[7].

Order

17.  The Leave Application be dismissed

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