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

HCAL 1573/2024

[2025] HKCFI 217

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1573 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 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 Masanah (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 14 November 2023 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 3 April 2023 (“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 14 December 1974 in Central Java Province, Indonesia. She received 9 years of education and had 12.5 years of work experience as a foreign domestic helper.

The Claim

3.  The Applicant’s mother passed away in March 2015. At that time, her family house in Indonesia (“House”) was occupied by two families, that of her second younger brother (“Brother”) and that of her sister.

4.  In around August 2018, Brother harassed the Applicant’s sister and she and her family moved out from the House. The Applicant called her other siblings (excluding Brother), and they all agreed to sell the House. The Applicant intended to share the proceeds of sale equally with all her siblings.

5.  In October 2018, Brother called the Applicant (who was working in Hong Kong at that time) and threatened to kill her if she attempted to sell the House (“Threat”). The Applicant changed her phone number immediately and stopped communicating with him.

6.  The Applicant’s sister told her that Brother opened a grocery store at the House in around 2020. The Applicant’s sister was concerned that any attempt by the Applicant to sell the House would be viewed as a threat by Brother and he would kill her to stop the attempted sale.

7.  The Applicant claimed that she would be ill-treated or killed by Brother if she were returned to Indonesia.

Procedural history

8.  The Applicant last arrived in Hong Kong on 23 May 2018 to work as a foreign domestic helper. She was required to leave Hong Kong on or before 26 October 2018 after the premature termination of her employment.

9.  She overstayed and was arrested by the police on 15 February 2023. By a written representation of 18 February 2023, 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 (“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”).

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 11 September 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 affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Board as the proposed respondent.

13.  When the Applicant filed the Form 86, she expressly stated in writing that she did not request an oral hearing for her application for leave for judicial review. I proceeded to deal with her application by paper disposal.

14.  Order 53 rule 4(1) of the Rules of the High Court provides that:

“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.”

15.  The Board’s Decision was issued on 14 November 2023. As such, the Applicant should have filed the Form 86 latest on 14 February 2024. The Form 86 was filed on 11 September 2024 and it was late.

16.  No application for extension of time to file the Form 86 was made by the Applicant.

17.  The Applicant was late for more than 6 months in filing the Form 86. This is a substantial delay. However, the Applicant has not applied for time extension to file the Form 86. No explanation has been provided by the Applicant for her late filing of the Form 86. As such, I have no basis to extend the time for the Applicant to file the Form 86 in this case and this application of the Applicant for leave to apply for judicial review is liable for dismissal on the ground of delay.

18.  For the sake of good order and completeness, I shall consider the merits of the Applicant’s application before deciding on how to dispose of the matter.

The DOI Decision

19.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that Brother intended to carry out the Threat to kill the Applicant. Brother appeared to have issued the Threat out of anger and the Applicant had no further contact with him after the Threat. There was insufficient evidence to show that Brother seriously intended to carry out the Threat.

20.  The Applicant’s feared ill-treatment by Brother was attributed to her personal grudges with Brother which had nothing to do with any of the reasons referred to in the Refugees Convention, ie race, religion, nationality, membership of a particular social group or political opinion (“Convention Reasons”). The Director also noted that no severe pain or suffering within the definition of “torture” under section 37U(1) of the Ordinance had ever been inflicted upon the Applicant in the past, which was indicative of low, if any, future risk of “torture” as defined.

21.  The Applicant’s conduct of delay in lodging the Claim since October 2018, when Brother made the Threat to her, was inconsistent with the behaviour of a person who genuinely feared for safety of her life.

22.  The Applicant’s dispute with Brother was essentially domestic and private in nature. There was no evidence to suggest that Brother’s hostile acts were initiated, instigated or authorized by, or acquiesced in by the Indonesian police or government. The Director did not accept that Brother’s illegal acts of imposing threats upon the Applicant were the official stance of the Indonesian government, or could be taken that he was acting in an official capacity. The Applicant was not subjected to any adverse interest by the Indonesian government. 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.

23.  The Director assessed that the threats from Brother, if any, were just localized and confined to the Applicant’s hometown. There was no indication that Brother had any real intention or the resources to search for the Applicant everywhere in Indonesia. The Director found that internal relocation would be viable to the Applicant. If the Applicant moved to Bali or Surabaya, Brother 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.

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

The Board’s Decision

25.  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 formed the view that the Applicant was not a witness of truth for the reasons given in §§18-46 of the Board’s Decision.

26.  The Board found the Applicant’s assertion that Brother intended to kill her vague, unsubstantiated, and internally inconsistent. The Board did not accept her such assertion. There was also no reliable evidence showing that the alleged acts of Brother had inflicted on the Applicant pain or suffering of certain severity or gravity.

27.  The Board found that the Applicant’s fear for persecution was not well-founded nor due to a Convention Reason. The real cause of any possible ill-treatment that the Applicant might face arose solely from the personal grudge that Brother might have against her, which was a private matter between them only.

28.  There was no evidence that any acts of torture as defined in section 37U of the Ordinance had been inflicted on the Applicant. There was no evidence suggesting that the Applicant had been ill-treated by public officials and/or persons acting in official capacity. There was no reliable evidence to show that the Indonesian government knew, or ought to have known about the claimed threats and ill-treatments against the Applicant and failed to respond. The Board did not accept that the Applicant would be in danger of being subjected to torture if deported from Hong Kong.

29.  The Board did not accept that Brother intended to kill the Applicant. There was no reliable evidence that she had suffered ill-treatment, physically or mentally, of certain severity or gravity. The Board did not find any evidence suggesting that the Applicant was at risk of arbitrary deprivation of life in violation of BOR 2 or at risk of being subjected to BOR 3 risk, if she were returned to Indonesia.

30.  The Board further found that there was no evidence to suggest that the Indonesian government was adversely interested in her. It found that the police would not acquiesce to any illegal action by Brother and that the Indonesian government was willing and able to protect the Applicant. The Board found that reasonably sufficient state protection would be available to her.

31.  The Board held that the Applicant could lower or negate the perceived risk of harm from Brother by relocating to Jakarta, Surabaya, Medan or Bali. With her education and substantial work experience, it would be reasonable to expect her to relocate within Indonesia.

32.  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

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

34.  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.”

35.  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

36.  The Applicant did not advance any grounds for her intended judicial review in the Form 86. In the Supporting Affirmation, the Applicant only stated that: “I’m Masanah and wish to file for judicial review for my Torture Claims Appeal Board and ask for my help to stay in Hong Kong my life still in danger.” She then produced the Board’s Decision as exhibit to the Supporting Affirmation but no other supporting documents.

37.  No proper ground for this 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.

38.  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.

39.  The Board found that the Applicant’s account not credible and rejected it as untruthful. The Board did not accept that the Applicant faced risks of serious harm as alleged. The Board found that the Applicant had failed to show that she had a well-founded fear of being persecuted for a Convention Reason. The feared harm alleged by her did not satisfied the definition of torture under section 37U of the Ordinance. The evidence adduced by the Applicant disclosed no substantial grounds for believing that she would be subjected to a real risk of her rights under BOR 2 or BOR 3 being violated. Furthermore, internal relocation was viable and reasonable state protection was available to her.

40.  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 finding of facts 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.

Conclusion

41.  The Form 86 was filed out of time without leave of the court 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