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

HCAL 2128/2020

[2025] HKCFI 3343

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2128 of 2020

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;

1.   The Form 86 be amended as stated on paragraph 1; and

2.   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 23 October 2020 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 4 June 2020.  Enquiries with the Board revealed that the Board made a decision dated 30 September 2020 (the “Decision”) dismissing the Applicant’s appeal against the decisions of the Director of Immigration (the “Director”) in his Notice of Decision dated 4 June 2020 (the “Notice”) refusing her application for non-refoulement protection. It is obvious that the Applicant was mistaken about the date of the Board’s decision.  Thus, on its own motion, the Court amended the date of the Decision stated on the Applicant’s Form 86 to “30 September 2020” to give effect to her intention.

2.  The Applicant did not request an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered the leave application may be justly determined on paper without an oral hearing.

Background

3.  The Applicant is an Indonesian national.  She last entered Hong Kong in April 2012 to work as a foreign domestic helper.  She overstayed since 21 May 2012 after her employment was prematurely terminated.  She was arrested by the police for overstaying on 19 August 2012. A removal order was issued against her on 13 September 2012.  Then she raised a claim under Part VIIC of the Immigration Ordinance, Cap 115 (the “Torture Claims”) on 28 September 2012 which was converted into a non-refoulement claim under the Unified Screening Mechanism (the “previous claim”).  That claim was rejected by the Director via his Notice of Decision dated 15 August 2016 and 19 October 2017.  She did not appeal those decisions, but requested that she be allowed to make a subsequent claim.  On 7 May 2020, the Director allowed her to file a subsequent claim, which she did.  By his Notice dated 4 June 2020, the Director refused her subsequent claim.  Her appeal was dismissed by the Board’s Decision.  She now applies for leave to apply for judicial review of that Decision. 

The Applicant’s subsequent claim

4.  The Applicant’s previous claim was that she will be harmed or killed by her husband’s creditors for being unable to repay her husband’s debt of 90 million Indonesian Rupiahs owed to them, if returned to Indonesia.  Her subsequent claim is that (1) she would be at risk of harm from her husband because she refused to pay his debts; and (2) she would not get proper care for her HIV-positive condition in Indonesia.

5.  The Applicant was arrested by the police for some immigration offences and sentenced to 12 months’ imprisonment on 30 June 2015.  While serving her sentence in Lo Wu Correctional Institute, she discovered she was an HIV positive carrier.  She had to (1) take daily medication and yearly injections for life; and attend the HIV Clinic in Queen Elizabeth Hospital every two to three months for regular check-ups in order to keep the disease under control. She was advised that as HIV can lead to death if not properly treated, it was necessary for her to attend her medical appointments regularly and adhere to her medication regime.

6.  Prior to the hearing of her subsequent claim before the Board, the Applicant made serious complaints about CIC’s failure to provide her with medication and allow her to attend the HIV Clinic in Queen Elizabeth Hospital. The Board made enquiries with the medical officer of the CIC.  The medical officer refuted the Applicant’s claim and responded in writing as follows:

(1)     the Applicant never told the duty doctor ot nurse of the CIC on her admission to the CIC that she was HIV positive; or when asked if she was suffering from any disease requiring long term medication;

(2)     the first time the Applicant mentioned her HIV positive condition was in April 2020 when she told the duty doctor that she had among her belongings an appointment slip of the HIV Clinic of Queen Elizabeth Hospital which is necessary for her to attend medical consultation outside the CIC.  She promised to retrieve that appointment sheet;

(3)     despite her promise, she did not refer to the appointment slip or her HIV positive condition in her next visit in May 2020;

(4)     in her visit in August 2020, the Applicant referred to her HIV condition and provided her personal particulars;

(5)     as a result of the disclosure, the CIC faxed a request form to Queen Elizabeth Hospital for her medical record, but was informed that the Applicant’s record could not be found; and

(6)     the medical officer of the CIC refuted the Applicant’s complaints that she had been refused medical consultation.  He pointed out that she had been seen in the Medical Centre several times and was familiar with the procedure for seeking medical consultation in the CIC.

7.  At the hearing of the appeal, the Applicant conceded items (1) and (2) of the medical officer’s written response.  She said her appointment slip was left behind in her rented room.  In response to the medical officer’s assertion that her medical record could not be found in Queen Elizabeth Hospital, she insisted she had “registered with [her] recognizance form”.  She confirmed that she discovered her HIV condition while serving her sentence in Lo Wu Correctional Institution, impliedly confirming that she did not discover that in the CIC.

The Applicant’s claim of fear against her husband

8.  The Applicant’s evidence is that she had been refusing her husband’s demand for money to repay his debts since sometime in around 2010 and she did refused his demand in October 2011 though she was very scared.  Apart from saying “Be careful, your daughter is now with me!”, the Applicant adduced no evidence that her husband had ill-treated her for the six months from October 2011 to April 2012 while she was in Indonesia until she left for Hong Kong.

9.  The Board noted the Applicant’s claim that her husband was a violent person who could do anything and had threatened her by saying that her daughter was with him.  However, her mother managed to take the Applicant’s daughter away from her husband and there was no evidence that her mother encountered any difficulty from her husband when doing so.  The evidence indicated that her husband had no inclination to harm the Applicant when she refused his demand for money or to harm her mother when she took the daughter away from him.  The evidence also indicated that her husband had no ability to harm the Applicant.

The finding of the Board

10.  The Board did not accept the Applicant was a credible or reliable witness.  It found she had not adduced any credible evidence to show that she was/is suffering from HIV and rejected her evidence that her husband had ill-treated her as she alleged.  It found all the core assertions of her non-refoulement claim were fabricated and/or are wholly unreliable. 

11.  It found there was no evidence that the Applicant had suffered physical and/or mental ill-treatment of the requisite severity; that the government and/or the state and/or other authorities in Indonesia had acquiesced in the alleged ill-treatment of the Applicant; that her husband had ill-treated the Applicant with an intention listed in the definition of ‘torture’ under section 37U of the Immigration Ordinance; that the state or government of Indonesia was unwilling or unable to afford protection to the Applicant or unwilling or unable to help her for a reason protected under the 1951 Convention relating to the status of Refugees and its 1967 Protocol.

12.  Applying the law applicable to the non-refoulement protection under the USM to the above finding of fact, the Board found that the Applicant had failed to discharge the burden of proving her fear is well-founded and failed to establish the factual basis to support her claim for non-refoulement protection under any of the applicable grounds under the USM.  Hence, it dismissed her appeal against the decision in Notice.

Legal principles applicable to judicial review

13.  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[1].  

Grounds for judicial review

14.  The Applicant did not advance any grounds of appeal in her Form 86, or her supporting affirmation. In her letter received by the High Court Registry on 23 May 2025, she repeated her wish not to return to Indonesia and her medical check-ups.  These could not constitute any arguable grounds of application.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

Overall scrutiny

15.  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 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 analysed the evidence carefully, tested it against common sense, inherent consistency and inherent probability.  It found the Applicant incredible and rejected her evidence.  It found all the core assertions of her non-refoulement claim were fabricated and/or are wholly unreliable.  It gave full reasons for its finding.  It was on that basis that the Board found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in 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 his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

16.  For the above reasons, leave to amend the Form 86 is granted but the leave application as amended 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

Form CALL-1

[1] [2018] HKCA 524 at [14(1)]