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

HCAL 1779/2024

[2025] HKCFI 572

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1779 of 2024

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.

Observation for the Applicant:

Introduction

1.  This is an application by Madam Sulistyorini (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 14 August 2024 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 16 April 2024 (“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 15 September 1987 in Ponorogo, Indonesia. She received 9 years of education and had 11.5 years of work experience as a foreign domestic helper.

The Claim

3.  The Applicant claimed that she would be harmed or killed by her husband (“Husband”) if she were returned to Indonesia. She claimed that she married Husband in 2008 and had two sons with him. Husband worked as a farmer.

4.  In 2018, the Applicant started an affair with a man (“R”) while working in Hong Kong. Husband learnt of the affair in around 2019. Since August 2019, Husband made repeated calls to the Applicant and threatened to kill her. The threatening calls continued for two months.

5.  The Applicant returned to her parents’ home in Indonesia in January 2020. Husband took their sons to the home of the Applicant’s parents three times. Husband threatened to kill the Applicant in the first two visits. In the third visit on 3 February 2020, Husband pushed the Applicant, which caused her to experience a shortness of breath (“Incident”). The Applicant had to stay in the hospital for a night and she was traumatized by the experience.

6.  On the next day after the Incident, the Applicant returned to Hong Kong to work. Husband continued to make threatening calls to the Applicant after her return to Hong Kong.

Procedural history

7.  The Applicant arrived in Hong Kong on 5 February 2020 to work as a foreign domestic helper. She was required to leave Hong Kong on or before 20 January 2023 after the premature termination of her employment. She overstayed and was arrested by the Immigration Department on 2 July 2023. By a written representation of 17 October 2023, the Applicant lodged the Claim.

8.  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 (“Ordinance”);

(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” and “BOR 2”);

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

9.  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.

10.  On 8 October 2024, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed her supporting affidavit/affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Board as the proposed respondent and the Director as the interested party.

11.  By a letter dated 31 December 2024 (“Letter”) addressed to the court, the Applicant applied to withdraw her intended judicial review application (“Withdrawal Application”) stating that she was safe to go back to her country and she wanted to go back as soon as possible.

The DOI Decision

12.  The Director noted that the low intensity and low frequency of past ill-treatment from Husband was indicative of a small future risk of harm upon the Applicant’s return. Further, the mental and physical injuries she suffered from Husband hardly attained a minimum level of severity. The Director was of the view that Husband’s actions were reflective of his frustration towards the Applicant due to her extra-marital affair with R and Husband did not really intend to kill or seriously harm the Applicant. The Director noted that the frequency of the threatening calls from Husband decreased with time and the Applicant had had no contact with Husband since August 2023 (when she was detained by the authorities in Hong Kong).

13.  The acts and threats by Husband against the Applicant were originated from his personal grudges against the Applicant (if any) and had nothing to do with the Indonesian government or any of the state authorities. The Applicant was able to apply for her passport and travel in and out of Indonesia without encountering any difficulties. She was not adversely targeted by the Indonesian government.

14.  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.  The Director was of the view that the risks of harm from Husband, even if existed, were at most considered as a localized one. There was no substantial ground to believe that Husband had the ability and resources to locate the Applicant nationwide in Indonesia. The Director found that internal relocation would be viable to the Applicant. If the Applicant moved to Palembang or Bali, Husband would have great difficulties in locating her. After considering her education 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.  The Board accepted that Husband had attacked and threatened the Applicant in the past. However, it found that Husband’s actions were due to his anger upon learning about the Applicant’s extra-marital affair. The Board did not accept that Husband seriously intended to carry out the death threat against the Applicant or cause her serious harm if she returned to Indonesia.

18.  The Board found that there was nothing in the Applicant’s case suggesting that the ill-treatment inflicted by Husband on her fell within the meaning of “torture” under section 37U of the Ordinance or was related to any of the reasons referred to in Article 33 of the Refugees Convention, i.e. the issue of race, religion, nationality, membership of a particular social group, or political opinion. There were no substantial grounds for believing that the Applicant would be subjected to torture or the kind of ill-treatment contemplated in BOR 3 if she was sent back to Indonesia and there was nothing in her case that support her claim under BOR 2.

19.  The Applicant did not report Husband to the Indonesian police. She believed that as her case was only a case of domestic dispute, the police would not intervene. The Board found that Indonesian government did take measures to improve the Indonesian police in terms of efficiency and concern for human rights. There were also non-government organizations in Indonesia such as the Women Headed Household Empowerment Program (PEKKA) which aimed at protecting women from gender-based violence.

20.  The Board also found that internal relocation to some other parts of Indonesia would be viable to the Applicant. With the Applicant’s age, education and work experience, it would not be unduly harsh to expect her to relocate. There was no evidence to suggest that Husband, being a farmer, had any connection with the Indonesian state or that he would be able to locate the Applicant outside of her hometown.

21.  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

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

23.  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.”

24.  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

25.  The Applicant did not advance any grounds for her intended judicial review in the Form 86. She only exhibited the Board’s Decision together with the covering letter as exhibits to the Supporting Affirmation. She produced no other supporting documents nor stated her grounds for her intended judicial review.

26.  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.

27.  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.

28.  The Board found that Husband did not seriously intend to carry out the death threat against the Applicant or cause her serious harm if she returned to Indonesia. Furthermore, she 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. She might also seek assistance from non-government organizations.

29.  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.

The Withdrawal Application

30.  The Applicant subsequently made the Withdrawal Application by the Letter stating that she wanted to withdraw this judicial review and go back to Indonesia as soon as possible. She stated that she was safe to go back to her country. At the court hearing of 8 January 2025, the Applicant confirmed that she wished to withdraw her judicial review application.

31.  I am satisfied that the Applicant made the Withdrawal Application out of her own volition.

32.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

33.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

34.  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