AYU DWI HARYANTI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1015/2022

[2025] HKCFI 1423

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1015 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 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 Ayu Dwi Haryanti (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 13 September 2022 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 28 December 2021 (“DOI Decision”) in refusing the Applicant’s claim for non‑refoulement protection (“Claim”).

Background of the Applicant and the Claim

2.  The Applicant is an Indonesian.  She was born on 11 June 1995 in Central Java, Indonesia.  She received 9 years of education and had more than 3 years of work experience.

3.  The Applicant claimed that her creditor in Indonesia (“Creditor”) would harm or kill her because of an outstanding debt.  In late December 2018, the Applicant borrowed IDR 50 million (“Loan”) from the Creditor to pay for the medical expenses of her father.  She was required to repay IDR 70 million to the Creditor after six months.

4.  The Applicant came to Hong Kong to work as a foreign domestic helper on 6 May 2019.  She made some payments to the Creditor but stopped paying the Creditor altogether after August 2019.  In mid-August 2019, the Creditor went to the Applicant’s family house with three unknown men.  They reminded the Applicant’s mother that the Loan was overdue but left without causing her mother any injury.

5.  The Creditor and his men went to the Applicant’s house on several different occasions in late 2019.  They threatened to destroy the Applicant’s house and kill the Applicant if the Loan was not repaid in full.  On one occasion, they vandalised the Applicant’s home.  Her mother had to flee her home to avoid the Creditor but she did not report the incidents to the police.

6.  The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Ordinance”) (“torture risk”);

(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”) (“BOR 2 risk”);

(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 (“Refugees Convention”) (“persecution risk”).

7.  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.

8.  On 28 September 2022, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision.  The Applicant filed her supporting 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.

Legal principles applicable to judicial review

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

10.  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 [i.e. country of origin information] 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.”

11.  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

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

13.  In the Supporting Affirmation, the Applicant exhibited the Board’s Decision and alleged that the Board’s Decision had many errors without particulars.

14.  The Applicant had sent two undated letters to the court.  One was received by the court on 11 December 2024 (“1^st Letter”) and the other was received on 27 January 2025 (“2^nd Letter”) (together “Letters”).

15.  In the Letters, the Applicant provided no particulars on the “errors” of the Board’s Decision alleged in the Supporting Affirmation.  The Applicant attended the court hearing on 6 March 2025 (“Court Hearing”) but was still unable to identify at the Court Hearing any “errors” in Board’s Decision as alleged in the Supporting Affirmation.  The aforesaid allegation of the Applicant was mere bare assertion without particulars or supporting evidence. Such ground is not reasonably arguable in the intended judicial review.

16.  In the Letters, the Applicant maintained that she was still at risk if she were returned to Indonesia.  In the 1^st Letter, the Applicant repeated the threats from the Creditor.  She also raised another issue that she was a lesbian (“New Issue”).  She stated that Indonesian culture mainly driven by Muslim ideology.  They were against lesbian and therefore they might not be welcoming her.  She would be subject to bullies and even worse.  She asked to stay in Hong Kong until after all her problems were settled.

17.  There was no mention of the New Issue in both the DOI Decision and the Board’s Decision.  At the Court Hearing, the Applicant said that she had raised the New Issue with the Director and the Board.  It is noted that the Applicant was legally represented by the Duty Lawyer Service (“DLS”) in presenting the Claim (§4 of the DOI Decision).  If the New Issue had been raised when the Claim was presented, it could not have been missed by both the DLS, the Director and the Board.  I found that the New Issue was first raised in the 1^st Letter. It is not new evidence in support of the Claim or the Appeal.  It is new ground for non-refoulement protection claim.  Judicial review is not an occasion for the Applicant to make a fresh non-refoulement claim.  In any event, the New Issue was bare assertion without any particulars or supporting evidence.  Such matter will not be considered in the intended judicial review.        

18.  The Applicant testified at the hearing before the Board.  The Board found her testimony to be evasive and inconsistent for the reasons given at §31 of the Board’s Decision.  The Board found the Applicant’s case about the threats unbelievable in both her oral evidence and her written case.  The Board accepted the Applicant’s evidence on her personal and family background but did not accept the stated threats and vandalism by the Creditor.

19.  The Board found that the dispute and matters alleged by the Applicant, even if existed, were confined to her local area.  There was nothing to suggest that the government would help to track her down so as to harm her or that the Creditor was so powerful over the whole country of Indonesia as claimed.

20.  The Board further found that the country of origin information (COI) indicated that sufficient state protection would be available to the Applicant upon her return (§43 of the Board’s Decision).  It noted that the Applicant never reported the Creditor’s crimes to the Indonesian authorities and she was able to leave Indonesia via the official channel (§41 (b) and (d) of the Board’s Decision).  It further found that the frequency, intensity and mode of past ill-treatment from the Creditor did not suggest that the feared ill‑treatment attained a minimum level of severity (§41(e) of the Board’s Decision).

21.  Lastly, the Board found that internal relocation would be viable to the Applicant (§59 of the Board’s Decision).

22.  The Applicant maintained in the Letters that she was still at risk to return to Indonesia.  At the Court Hearing, she alleged that law and regulations were not followed in Indonesia and Indonesian authorities would not take actions even reports were made to them.  However, the Applicant was unable to identify any error of law, procedure unfairness or irrationality in the Board’s Decision.

23.  As pointed out in the Nupur Mst case (supra), assessment of evidence, country of origin information materials, risk of harm, availability of state protection and viability of internal relocation were primarily within the province of the Board.  The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.

24.  In disputing the findings on assessment on evidence, credibility, risk of harm and availability of state protection, the Applicant sought to challenge the findings of fact of the Board which is not permissible in a judicial review unless in making such findings there were errors of law or procedural unfairness or irrationality.  I find none in this case.

25.  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 the Board’s Decision was 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.

26.  Having rigorously examined the Board’s 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 for seeking non-refoulement protection; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

27.  In §44-56 of the Board’s Decision, the Board considered the Claim under each applicable grounds under the USM.  The Board found that there were no substantial grounds for believing that the Applicant would be subjected to the torture risk or the BOR 3 risk if she returned to Indonesia.  No severe pain or suffering within the definition of “torture” under Section 37U of the Ordinance had ever been inflicted upon the Applicant.  The Board did not accept that the Applicant had a well-founded fear of the persecution risk.  Her alleged problem had nothing to do with any of the reasons referred to in Article 33 of the Refugees Convention.  The Board also found that there were no grounds for believing that the Applicant would be subjected to the BOR 2 risk.  The Board did not see any real chance that the Applicant would be harmed, or, if she was, that the protection of the police would not be available to her in her home district.  If necessary, internal relocation would be viable to her.

28.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection.  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 and has no realistic prospects of success.

Conclusion

29.  In the premise and having considered the Board’s 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.

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