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

HCAL 2064/2024

[2025] HKCFI 151

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2064 of 2024

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 the Applicant’s application by Form 86 filed on 7 November 2024 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 12 September 2024 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in her Notice of Decision refusing her application for non-refoulement protection.

Background

2.  The Applicant is an Indonesian national. She entered Hong Kong to work as a foreign domestic helper on 6 October 2018. She overstayed since after her employment contract was terminated on 14 March 2022. She was arrested and sentenced to fifteen months’ imprisonment on 8 November 2023 for some immigration offences. Then, on 27 November 2023, she raised a non-refoulement claim. In due course, her non-refoulement claim was assessed on all four applicable grounds under the USM, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Her application was rejected by the Director’s Notice. Her appeal was dismissed by the Board’s Decision. She now seeks leave to apply for judicial review of that Decision.

The Applicant’s case

3.  The following account of the Applicant’s case is mainly based on the information in the torture claim form and the non-refoulement claim form prepared by her with legal assistance and the record of her screening interviews in the presence of her lawyer. In gist, she claims that she will be harmed or killed by her husband for failing to repay his loans owed to his moneylenders, if returned to Indonesia.

4.  The Applicant, now aged 43, was born in East Java Province, Indonesia. She is married and has one son and one daughter. Her parents are deceased. Her elder brother, elder sister and her children are living in Indonesia. She had received 9 years of formal education and had 13 years of working experience as a domestic helper.

5.  The Applicant started working in Hong Kong in 2011. She returned to Indonesia for the Javanese new year in March 2014 and discovered her husband had extramarital affairs. When she confronted him for that, he denied. Then they quarrelled. Her husband assaulted her with bare hands. She did not suffered any injury. She returned to Hong Kong to resume work.

6.  In 2015, her husband borrowed 200 million Indonesian Rupiah (“IDR”)from three friends (the “creditors”) to support his chicken farm. She had no knowledge about the details of the loan. Then she came to know that her husband had closed down the chicken farm. Since 2015, her husband phoned her twice or thrice a month asking her to remit money to him for repaying the loan. Between 2017 and 2018, she remitted 40 million IDR, but her husband continued demanding for money and verbally threatened to kill her if she failed to remit him money. So she changed her telephone number and for some time she did not hear from him.

7.  Starting from February 2022, her husband contacted her again after obtaining her telephone number from her children. He demanded her to remit money him or he would kill her upon her return to Indonesia. But he never harmed her family members. Following her arrest and imprisonment, she no longer hear from her husband.

8.  Out of fear for her husband, the Applicant did not return to Indonesia. She does not think the police will protect her as she had no money to bribe them. She does not consider internal relocation feasible because she had no resources or connection.

The finding of the Board

9.  The Board did not find the Applicant particularly believable or unbelievable. Nevertheless, it considered her story of domestic dispute with her husband consistent and assessed her claim on the basis of the case as she asserted, except for her evidence about state protection and internal relocation.

10.  In respect of Persecution Risk ground, the Board accepted that the Applicant is a member of a particular social group under the1951 Convention relating to the status of Refugees and its 1967 Protocol, but nevertheless found adequate state protection available and internal relocation feasible. The Board had extensively studied available country of origin information (“COI”). Though it accepted that official corruption and abuse of power are common, and government enforcement insufficient, however it was satisfied on his basis of more recent COI and news that the government has tried its best to combat corruption and domestic violence. The government devoted much effort and resources to improve police professionalism and protection of women. It was satisfied that the police are generally effective in detecting and investigating crime, the Corruption Eradication Committee (“KPK”) is active in prosecuting officials suspected of corruption at all levels of government and the independent Ombudsman provides an avenue for citizens to complain against government agencies. It also noted news about the arrest and conviction of senior members of the government and the judiciary which evidences improvements in the country conditions of Indonesia. On balance, it found adequate state protection available and internal relocation feasible.

11.  In respect of BOR 2 Risk ground, the Board found no evidence that a sentence of death will be imposed on the Applicant on her return to Indonesia. It found the Applicant had failed to demonstrate that she will face a real risk of being deprived of her right to life, if returned to Indonesia.

12.  In respect of BOR 3 Risk ground, it is the Applicant’s own case that she never suffered injuries which attained a minimum level of severity as to suggest she would be at risk of being subjected to ill-treatment if refouled.

13.  In respect of Torture Risk ground, the Board found there was no evidence to show that the Applicant was targeted by or of interest to the Indonesian government or that her husband was acting under the instruction of certain government officials or the government to kill or hurt her. It was the Applicant’s choice arising from her own speculation not to seek police assistance and not that assistance was not available. There was no evidence of active or passive state acquiescence. On the totality of the evidence, the Board found there was no foreseeable, real, personal and present risk of the Applicant being tortured if refouled to Indonesia.

14.  For the above reasons, the Board dismissed her appeal against the Director’s Notice.

Legal principles applicable to judicial review

15.  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[5].

Grounds for judicial review

16.  The Applicant did not advance any grounds of review in her Form 86. In her supporting affirmation, she only annexed a copy of the Decision. At the hearing, after the above legal principles had been explained to her, she confirmed that she had no complaints about procedural unfairness or irrationality in the Board’s Decision and that she would leave it to the Court to look for errors of law in the Decision on her behalf.

Overall scrutiny

17.  Having rigorously examined the Decision, the papers 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 four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicant’s claim on the basis of her case as she asserted. It was on that basis that the Board found the Applicant’s feared ill-treatment is not well-founded. Then, applying the law to the above finding of fact, the Board came to the conclusion that the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as they are finding of law, they are absolutely correct. Insofar as they are finding of facts, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no error of law in the Decision or procedural unfairness in the making of the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

18.  Accordingly, the leave application is refused.

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

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