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

HCAL 132/2022

[2025] HKCFI 660

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 132 of 2022

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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Madam Solihah Imas (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 28 December 2021 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 23 October 2020 (“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 5 May 1989 in West Java, Indonesia. She received 9 years of education and had 13 years of work experience as a domestic helper.

The Claim

3.  The Applicant claimed that she married her husband (“Husband”) in January 2018 under pressure from her mother. They both came from Muslim families. She came to Hong Kong to work as a foreign domestic helper on 8 February 2018.

4.  At the behest of Husband, the Applicant remitted HK$1,000 to him every month for the first three months since she came to Hong Kong. When Husband made more demands for money, the Applicant stopped remitting money to him and she later sought a divorce. Husband said he wanted 25 million Indonesian Rupiahs from the Applicant if he were to agree to the divorce. The Applicant did not give Husband further money.

5.  The Applicant met her boyfriend (“G”) in Hong Kong in August 2019 and became pregnant with G’s baby. G is a Hong Kong permanent resident.

6.  In January 2020, the Applicant informed Husband over the phone about the baby and requested a divorce. Husband repeated the same demand for money and threatened to kill her if she came back to Indonesia without paying him. The Applicant’s mother and sister said she had brought shame to their family and threatened to kill her if she returned to Indonesia.

7.  The Applicant claimed that she would be harmed or killed by her own family and Husband if she were returned to Indonesia.

Procedural history

8.  The Applicant arrived in Hong Kong on 8 February 2018 to work as a foreign domestic helper. She was required to leave Hong Kong on or before 13 February 2019 after the premature termination of her employment. She overstayed and surrendered to the Immigration Department on 28 February 2020.

9.  By written representations of 6 and 13 March 2020, 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;

(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 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.

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 9 February 2022, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of a decision dated 28 December 2021, which was the date of the Board’s Decision. She also attached a copy of the Board’s Decision to her supporting affirmation of the same date (“Supporting Affirmation”).

13.  Although in the Form 86, the Applicant named the Immigration Department or the Board as proposed respondents and proposed interested parties, it is clear that the Board’s Decision is the subject decision for this application.

14.  On 1 August 2024, the Applicant filed an affidavit (instead of an affirmation) applying to close her case (“Withdrawal Application”).

15.  The Director subsequently informed the court that the Applicant had been removed in September 2024.

16.  As the Applicant has been removed from Hong Kong in September 2024, I decided to deal with the Applicant’s applications for leave for judicial review and for withdrawal of the leave application on papers.

The DOI Decision

17.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that Husband or the Applicant’s family intended to harm her. Although they had threatened to kill the Applicant in the past, no harm had actually done to her and the Director did not accept that they possessed any intention to actually carry out the threats.

18.  The Director found that her dispute with her family and Husband was essentially a family dispute. There was no evidence to support that the Indonesian government would involve in, indifferent to or would provide encouragement to Husband or the Applicant’s family to harm or even kill the Applicant upon her return to Indonesia. There was no sufficient evidence indicating that the threats inflicted on the Applicant by her family or Husband was by or at the instigation of, or with the consent or active/passive acquiescence of, a public official or other person acting in an official capacity. There was also no information to indicate that the Indonesian government had any adverse interest in the Applicant.

19.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that the Indonesian government was able and willing to protect the rights of its citizens and reasonable state protection would be available to the Applicant, if necessary. There were also COI showing that the Indonesian government recognized the rights of women and children and provided reasonable welfare services to them.

20.  The Director did not accept that Husband or the Applicant’s family were capable to locate the Applicant all over the country of Indonesia. The Director viewed that the Applicant’s alleged harm from her family and Husband was merely a localized one. The Director found that internal relocation would be viable to the Applicant. If the Applicant moved to Bali or Surabaya, her family and Husband 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.

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

The Board’s Decision

22.  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 was not satisfied that the Applicant had been entirely forthright in her evidence. The Board was of the view that some aspects of her claims had been exaggerated or sensationalized to magnify the risk of harm she faced on return to Indonesia. (§§76-77 of the Board’s Decision)

23.  The Board accepted that the Applicant’s family and Husband had shunned her and threatened her against returning home. The Board accepted that the Applicant’s family would not tolerate her presence in the village but did not accept that they would seriously harm her, let alone kill her. The Board, however, accepted that Husband would attempt to attack or even kill the Applicant for having a baby with another man while still being married to him.

24.  The Board found that any threat to the Applicant would be localized to her home area and would be mitigated by effective state protection and internal relocation.

25.  The Board found that with the Applicant’s age, education and considerable work experience, it would not be unduly harsh to expect her to relocate within Indonesia, such as to Jakarta, Bali or Surabaya. It accepted that she might have some difficulties supporting herself and her baby as a single mother, but found that she could seek assistance from non-government organizations (“NGOs”) when needed.

26.  The Board was not satisfied that there are substantial grounds for believing that the Applicant to be in danger of being subjected to torture or that she faced a genuine and substantial risk of being subjected to the BOR 3 risk or that she had a well-founded fear of being persecuted, if returned to Indonesia. The Board also found that returning the Applicant to Indonesia would not expose her to a real risk of a violation of her right to life under BOR 2.

27.  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

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

29.  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.”

30.  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

31.  In the Form 86, the Applicant did not put forward any grounds for her intended judicial review.

32.  In the Supporting Affirmation, the Applicant only stated that: “I would like to apply for judicial review of my case and my problem. There is not safe in my country in Indonesia. Please review my case as life will be risk in my country. If I go back my sister would kill me and my husband too. Please review at the decision by immigration and torture claims appeal board and safe [sic] my life and my baby. Thanrs [sic] for judical [sic].” She then produced the Board’s Decision with covering letter as exhibits to the Supporting Affirmation without other supporting documents.

33.  By the Withdrawal Application, the Applicant applied to withdraw and close her case.

34.  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.

35.  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 applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

36.  The Board did not accept that the Applicant’s family would kill or seriously harm the Applicant. Although she might face risk of harm from Husband but effective state protection would be available to her and internal relocation viable. She might also seek assistance from NGOs.

37.  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 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

38.  By the Withdrawal Application, the Applicant sought to close her case.

39.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of her own volition.

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

41.  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

42.  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 realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

43.  As the court had been notified by the Director that the Applicant had been removed from Hong Kong and the Applicant has not informed the court of any change of her address for service, the court will send a copy of this judgment and the sealed order to the Applicant at her latest address stated in the Withdrawal Application with a copy set to the Director and request the Director to use his best endeavor to forward them to the Applicant.

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