NENGSIH-BT-UCA-RADUN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1630/2024

[2026] HKCFI 2635

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1630 OF 2024

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and the name of the putative interested party be amended to “Director of Immigration”.

2.   The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 19 September 2024, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 7 September 2023 (“the Board’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL001630_2024_files/the_Board's_Decision.pdf

2.  The Board found that the applicant had failed to establish a case for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Accordingly, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 13 March 2023 and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendments

3.  In Form 86, the applicant named herself and “Appeal Board non-Refoulement claim Petition Office” as the putative respondents, and herself and the Director as the putative interested parties.

4.  In fact, only the Board should be named as the putative respondent and only the Director should be named as the putative interested party.

5.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, and the name of the putative interested party to “Director of Immigration”.

Late application

6.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

7.  However, the applicant filed her Form 86 on 19 September 2024, which was more than one year after the Board’s Decision (made on 7 September 2023).  The applicant was hence late for more than 9 months in making the Leave Application.

8.  This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which are:

(i)   the length of the delay;

(ii)   the reason for the delay;

(iii)   the merits of the intended application; and

(iv)   any prejudice to the putative respondent and to public administration.

9.  The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application. 

10.  A delay of more than 9 months is very substantial, and there is simply no reason for this court to grant an extension of time for the applicant to file the Leave Application when no explanation was given.  More importantly, there is no merits in the Leave Application at all as discussed below.

11.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made.  The Leave Application can therefore be dismissed on the ground of being made out of time alone.

12.  However, for the sake of completeness, this court will consider the merits of the Leave Application as discussed below.

The applicant’s case

13.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

14.  In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed or killed by her creditor due to her inability to repay a loan of 100 million Indonesian Rupiah co-borrowed by her and her husband from the creditor.

Disposal on paper

15.  The applicant did not request for an oral hearing of the Leave Application.  This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court.  Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

16.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

17.  The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 19 September 2024.  In her affirmation, the applicant merely stated that her life was in danger in her country Indonesia, and asked for help to stay in Hong Kong.

Discussion

18.  First of all, the applicant’s danger in her home country had been duly assessed but rejected by the Board.  If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

19.  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 [2018] HKCA 524).

20.  Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

21.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 29 August 2023.  The applicant was present and was thus given the chance to present her case to the Board in person.

22.  As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. 

23.  The Board found that the applicant had only made bare assertions and provided no objective proof of her assertions.  The applicant was evasive in answering the Board’s questions.  The numerous inconsistencies in the applicant’s evidence and her inability to provide explanations for the inconsistencies led the Board to conclude that the applicant was not threatened for harm by her creditor, and even if there were such threats, the creditor had no real intention to carry them out.

24.  Nevertheless, the Board considered that even if the applicant’s claims were accepted, the applicant would still fail in her claim for non-refoulement protection.  Even on the applicant’s account, the harm that the creditor made to her were only verbal threats made to her via her husband and her family in Indonesia.  Her husband was a co-borrower of the loan in question.  Yet, her husband remained living in their home without being threatened or harmed by the creditor at all.  The Board considered that the ill-treatment inflicted on the applicant did not attain a minimum level of severity, or reach the level of torture as defined in section 37U(1) of the Immigration Ordinance.  There was no evidence of state acquiescence in her dispute with the creditor.  The applicant’s alleged fear was only due to her inability to repay a loan and did not fall within any of the Convention grounds.

25.  Moreover, the Board found that neither the applicant nor her husband had sought assistance from the police regarding the alleged threats from the creditor.  There was no evidence that the authorities in Indonesia would refuse to assist the applicant should she seek help from them.  The Board found from country of origin information (“COI”) that despite setbacks, the Indonesian government had put measures in place to combat corruption and to improve police accountability and effectiveness.  The Board considered that state protection would be available to the applicant upon refoulement to Indonesia.

26.  The Board also found that the applicant had many options for relocation within Indonesia.  The Board found no evidence to support that the creditor had the resources and power to locate the applicant throughout the country.  The Board found that there were places in Indonesia, such as Bali or Jakarta, where the applicant, being able-bodied with years of work experience, could relocate safely without undue hardship upon her return.

27.  Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

28.  The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition.  This court finds nothing wrong or unreasonable in the way the Board reached its decision.

29.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is 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 the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

30.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

31.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and devoid of merits.

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