NANI SUARNI BT WASMIN KUAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2063/2024

[2025] HKCFI 496

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2063 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 oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Madam Nani Suarni Bt Wasmin Kuad (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 2 October 2024 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 18 June 2024 (“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 5 July 1984 in West Java, Indonesia. She received 11 years of education and had worked as a foreign domestic helper.

The Claim

3.  The Applicant claimed that her parents borrowed 80 million Indonesian Rupiah from a neighbour (“Creditor”) in 2008 to renovate their house and to buy pesticides for their farmland. They promised to pay 1.4% annual interest and the principal was due in 3 years. The Applicant’s mother borrowed another 50 million Indonesian Rupiah from the Creditor in 2009 for renovating their home. The Creditor approached the Applicant’s mother in 2012 and advanced another loan for 25 million Indonesian Rupiah to her. The Applicant guaranteed repayment of all the three loans (“Loans”) to the Creditor.

4.  The Applicant claimed that the Creditor had accumulated some wealth after working in Hong Kong and had many friends. She was not aware of any connection between the Creditor and the Indonesian government or the triads.

5.  The Applicant came to Hong Kong to work in early 2012. The Creditor phoned the Applicant and her parents to urge them to pay back the Loans between 2012 and 2018.

6.  In 2019, the Creditor threatened to marry the Applicant to the Creditor’s relative if she did not pay back the Loans. The Creditor also visited the home of the Applicant’s parents in 2019. The Applicant’s mother later paid back 80 million Indonesian Rupiah to the Creditor and the Creditor threatened to kill the Applicant unless she paid back the balance of the Loans or marry the Creditor’s relative. The Creditor reiterated the same threat on 22 August 2022.

7.  The Applicant claimed that she would be harmed or killed by the Creditor if she were returned to Indonesia.

Procedural history

8.  The Applicant arrived in Hong Kong on 18 August 2022 to work as a foreign domestic helper. She was required to leave Hong Kong on or before 11 September 2022 after the premature termination of her employment. She overstayed and was arrested by the Immigration Department on 4 November 2023 for taking up illegal employment.

9.  By a written representation of 12 December 2023, the Applicant lodged the Claim. 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;

(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”).

10.  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.

11.  On 7 November 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 affidavit/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.

The DOI Decision

12.  The Director was of the view that the existence of the Loans were highly in doubt. After considering all the relevant circumstances, the Director was of the view that the Applicant was not telling the truth. The Director found it incredible that the Creditor would have agreed to lend substantial sums of money at a low interest rate to someone with the background of the Applicant’s family. The Director further found that even if the Applicant’s story were true, the Creditor’s actions did not show any intention to seriously harm the Applicant.

13.  The threats of the Creditor against the Applicant and her family members were only limited to verbal form. Nothing violent ever happened to the Applicant or her family members. There was no evidence to show that the Creditor had exhibited any intense and sustained effort to materialize the threats against the Applicant or her family for the Loans.

14.  The Applicant’s problem with the Creditor merely derived from a private loan dispute. There were no substantial grounds to believe that further actions (if any) by the Creditor would be inflicted by or at the instigation of or with the consent or active/passive acquiescence of a public official or other person acting in an official capacity. Furthermore, there was nothing to show that the Applicant was a target of the Indonesian government nor did the Indonesian authorities had any adverse interest in the Applicant.

15.  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.

16.  There was no indication that the Creditor had abundant resources or extensive network to search the Applicant throughout Indonesia by personal means. The Director assessed that the threats from the Creditor, if any, were localized. The Director found that internal relocation would be viable to the Applicant. If the Applicant moved to Jakarta, the Creditor would have great difficulties in locating her. After considering her education and work experience, the Director found that it would not be unduly harsh to expect her to relocate and lead a normal life.

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

The Board’s Decision

18.  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 §§11-39 of the Board’s Decision.

19.  The Applicant had failed to explain the inconsistency in the evidence she gave in her claim form and at the hearing before the Board relating to the Loans. The Board found that the evidence given by the Applicant relating to the Loans and her liability as guarantor for the Loans was not believable. The Board was not satisfied that the Loans truly existed or that the Applicant was the guarantor for the Loans.

20.  The Board considered that the Applicant was not a truthful witness. In material aspects of her case, the information and evidence given by her were illogical and not believable. She had given different accounts over time as to the facts and circumstances relating to the Loans. The changes were significant and, in some instances, completely contradictory. The Board was satisfied that the Applicant’s claims and allegations about the existence of the Loans and the threats she claimed to face arising from her failure to repay the Loans in her capacity as guarantor should she be returned to Indonesia were lacking in credibility.

21.  The Board went on to find that even if the Applicant’s stories were accepted to be true, the Claim should nevertheless be dismissed.

22.  The Board found that it was unlikely that the Creditor would kill the Applicant and commit the criminal offence of murder simply because the Applicant and/or her mother failed to repay the Loans. Apart from making verbal threats, there was no information or evidence to show that the Creditor had taken any further action to escalate her threats or to harm the Applicant or her family members in Indonesia. The Board was of the view that the verbal threats made by the Creditor were likely to be empty threats to put pressure on the Applicant to repay the Loans.

23.  The Board noted that the farmland given by the Applicant’s family to the Creditor as security was valued at around 200 million Indonesian Rupiah which would be sufficient to cover the principal and at least some of the outstanding interest. In other words, the Applicant’s family could have paid off the Loans if they wanted to. The Board was satisfied that it was unlikely that the Applicant’s feared harm from the Creditor would materialize.

24.  There was no involvement of any public official or any person acting in an official capacity in the problem between the Applicant and the Creditor which was a private matter relating to monetary dispute that had nothing to do with the Indonesian government or persons acting in official capacity.

25.  The Board found that state protection would be available to the Applicant and internal relocation would be viable. It found that the Creditor lacked the means to locate the Applicant outside her home area and that she could avoid the Creditor by internal relocation. The Board found that with her age, education and work experience, it would not be unreasonable or too harsh to expect her to relocate to other parts of Indonesia, such as Jakarta or Medan.

26.  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

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

28.  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: 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.”

29.  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

30.  The Applicant did not advance any grounds for her intended judicial review in the Form 86. In a statement annexed to the Supporting Affirmation, she only repeatedly stated that she would face persecution upon refoulement and her life was still in danger as the Creditor was still waiting to take revenge on her. She provided no further grounds for her intended judicial review. The Applicant only exhibited the Board’s Decision together with the covering letter as exhibits to the Supporting Affirmation without other supporting documents.

31.  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 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. In the court hearing on 8 January 2025, the Applicant confirmed that she did not find any error of law, procedural unfairness or irrationality in the Board’s Decision. She stated that she only wished to stay in Hong Kong temporarily.

32.  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.

33.  The Board found that the Applicant was not a witness of truth and was not satisfied that the Loans truly existed or that the Applicant was the guarantor for the Loans. In any event, the Board found that the Creditor did not seriously intend to carry out the threats against the Applicant if she returned to Indonesia. Hence, there were no “substantial grounds for believing” that if the Applicant was returned to Indonesia, she would face a real risk of being subjected to torture or there would be a personal and real risk of her being arbitrarily deprived of her life in violation of BOR 2. There were also no substantial grounds for believing, if refouled to Indonesia, that the Applicant would face a “real risk” or a “genuine and substantial risk” of being subjected to ill treatment referred to in BOR 3 or persecution for any of the reasons referred to in the Refugees Convention. Furthermore, she could safely and reasonably relocate to other areas in Indonesia upon her return to avoid her perceived risk of harm and reasonable state protection would be available to her.

34.  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 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.

Conclusion

35.  In the premise 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