ANNI NURIL HAMDATI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2096/2023

[2025] HKCFI 6322

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2096 of 2023

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 submission of the Applicant in open court;

1.  Extension of time to file the application for leave to apply for Judicial Review be granted; but

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 November 2023 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 17 April 2023 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 24 December 2021 (the “Notice”). The Form 86 was filed more than four months out of time.

2.  The Applicant is an Indonesian national. She last entered Hong Kong on 9 July 2019 to work as a foreign domestic helper. Her contract was prematurely terminated and she was given permission to remain in Hong Kong until 2 November 2020. She overstayed until 20 January 2021 when she surrendered to the authorities. On 3 March 2021, she raised a non‑refoulement claim. In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Her claim was dismissed by the Director’s Notice. Her appeal against the Notice was dismissed by the Decision of the Board. She now applies for leave to apply for judicial review of that Decision.

3.  The Applicant had requested an oral hearing. A hearing was scheduled and notice of hearing was sent to her by post on 9 January 2024 to her address in Yuen Long which was obtained from the Immigration Department on 8 December 2023. Previously, she had responded to the Court’s letter sent to her by post to that address on 11 December 2023, suggesting that the address is effective for communication with her. However, she did not appear at the 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 that the leave application may be justly determined on paper without an oral hearing.

4.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that there was no errors of law, procedural unfairness or irrationality in the Board’s Decision. On 28 February 2024, the Court issued the Form CALL-1 (the “Court’s 2024 decision”) and order refusing her extension of time to file the leave application and refusing her application for leave to apply for judicial review (the “Order”). On 19 March 2024, the Court’s 2024 decision and Order were returned undelivered and marked “incomplete address” with a note from the postman that the name of the village was missing from the address.

5.  Then, on 8 October 2025, the Applicant applied by summons for extension of time to appeal the Court’s Order. The Court understands that delivery to some village addresses in the New Territories is problematic. Whether a successful delivery could be effected may depend on how familiar with the locality was the postman and his readiness to walk the extra kilometres to effect the delivery. The Court is satisfied that the Applicant had not received the Court’s 2024 decision and Order. To save the Judiciary’s time and resources and the Applicant’s trouble in having to go through the appellate procedure which will result in her leave application being remitted back to this Court for rehearing, the Court called for a hearing and explained the situation to the Applicant. At the hearing, the Applicant agreed to the Court’s suggestion to withdraw her application for extension of time to appeal. Then this Court set aside the Order and the Court’s 2024 decision. The Court rescheduled a hearing and had the Court’s 2024 decision explained to her so that she understood why the Court previously refused her leave application and could properly prepare for her renewed leave application.

Extension of time to apply

6.  The leave application was filed more than seven months after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was made more than four months out of time. In AW and Director of Immigration and William Lam[5], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the Applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

7.  As the facts in this case have demonstrated, sometimes delivery to villages in the New Territories may be successful, but sometimes it may not. Instead of taking time to investigate with the Board and the Applicant about the delivery of the Board’s Decision, the Court assumed in the Applicant’s favour that she had not received the Board’s Decision back in April 2023 in time for her to make a timely leave application. Hence, it granted her extension of time to file the leave application and proceeded to consider its merits.

The Applicant’s case

8.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claimed that she would be harmed or killed by two finance companies upon her return to Indonesia because of her inability to repay the outstanding debts owed by her late husband to the finance companies.

9.  The Applicant was born in Blitar, Jawa Timur, Indonesia. She received approximately twelve years of education and has four and a half years of work experience as a domestic helper in Indonesia from September 2015 to September 2017 and later in Hong Kong from March 2018 to September 2020.

10.  Her then husband, now deceased, had borrowed money from a finance company while operating his fish farm between 2010 and 2017. She did not know how much he had borrowed or the identity of the finance company. In around July 2017, three people visited the Applicant's home demanding repayment of the debt owed by her husband. Her husband fled from the backdoor, leaving the Applicant to deal with those people. They demanded repayment of 10 million Indonesian Rupiah (“INR”) or her home would be seized. They gave her one week to pay and left after three hours without doing her or her family any harm. Her husband returned later but refused to give her any details about the debt. He asked her to go to Hong Kong to make more money and help him repay.

11.  Between July and December 2017, the finance company sent men to harass and threaten the Applicant’s family, but they did not cause them any actual harm. The Applicant borrowed two million INR from her father towards the end of 2017 as partial repayment to the finance company. At about the same time, she moved to the accommodation provided by an employment agency. She learnt from her husband that the finance company sent men to their home about once a month for five months to collect the debt, but the men did not harm her family.

12.  The Applicant went to work as a foreign domestic helper in Hong Kong in March 2018 and remitted money to her husband to repay the debts. She learnt from her father that the finance company was still sending men to collect the debt and that her husband also owed money to another finance company. Upon learning that her husband only paid interests but not the principal, she remitted the money to her father and asked him to repay the debts instead.

13.  Her husband passed away in November 2019 after a traffic accident. The Applicant sold the fish farm for six million INR and repaid part of the debt owed to the first finance company. She still owed both finance companies money and they continued sending men to her father’s home once a month to collect the debts. They told her father that if they found the Applicant in Indonesia they would kill her if she failed to repay. Her father did not tell her about the threat until October 2020. That was why she decided to overstay in Hong Kong and not to return to Indonesia. The Applicant confirmed that neither she nor her family had been harmed by either of the finance companies.

14.  The Applicant claims that the Indonesian authorities would not protect her, as they would not help without being paid bribes. She also claimed that internal relocation to other cities would not be viable because she had no money and she had no one to support her.

The finding of the Board

15.  The Board found the Applicant’s claim incredible. It noted that the Applicant gave three different versions about the frequency of death threats issued by the finance companies. She said in her NCF that since her husband’s death in November 2019 until the date she submitted the NCF in September 2021 the finance companies had been threatening once a month to kill her, ie a total of 26 times. At the screening interview, she said that the threat continued for about half a year since her husband’s death and stopped since May 2020, ie six times only. But at the hearing before the Board, she said the finance companies repeated the threat every month until March 2021. The Board also found the Applicant’s assertion that it was not until October 2020, eleven months after the threat was first delivered, that her father told her about the threats incredible.  

16.  The Applicant relied on a document purporting to be a demand letter issued by one of the finance companies as evidence of her husband’s debt, but the name of the debtor stated in that letter was “Ani Eko” which was not the name of her husband, Eko Budi. She explained the discrepancy on the basis that her name, Anni Nuril Hamdati, was named as a guarantor of the debt. The Board rejected her explanation because that document made no mention of any guarantor.

17.  The Board further held that it was inherently improbable that she would make repayment to the finance companies without ascertaining their identities. As she was unable to provide details about the identities of the finance companies and the unsatisfactory state of her evidence, the Board considered she was not a truthful witness and rejected her evidence.

18.  Having dismissed the Applicant’s only ground for claiming protection, ie the alleged threats from the finance companies, the Board found the Applicant had failed to establish that she would be subject to any of the proscribed risks of harm upon her return to Indonesia. Hence, the Board dismissed her appeal against the Director’s Notice.

19.  Nevertheless, the Board also assessed her claim, in the alternative, on the basis of the case as she asserted. The Board made the following further finding. It accepted her evidence that she remarried and her current husband (a Hong Kong citizen) had been helping her repay the debts. The outstanding amounts owed to the two finance companies as at the time of the hearing before the Board were only HK$2,400 and HK$6,000. Hence, the Board found if she kept up with the repayments, she would be able to pay off the debts and the finance companies would have no incentive to harm her.

20.  After referring to credible and authoritative country of origin information (“COI”) including the World Factbook published by the United States State Department and to the website of World Population Review, the Board found it difficult for the finance companies to locate the Applicant if she should relocate to populous cities such as Denpasar or Medan. It considered the Applicant’s fear that she will be located by the finance company a speculation on her part. It found with her age, education and work experience, it would not be unreasonable to expect her to relocate to Medan or Denpasar upon her return to Indonesia to avoid her risk of harm.

21.  The Board found that the Applicant would not be at real risk of harm upon her return to Indonesia. It found her dispute with the finance companies were private in nature and had nothing to do with race, religion, nationality, membership of a particular social group or political opinion. The persecution and harm from the finance companies did not arise from one or more of the reasons enumerated in the 1951 Convention relating to the status of Refugees and its 1967 Protocol (the “Refugees Convention”).  It found the ill-treatment from the finance companies did not attain the minimum level of severity and had nothing to do with the Indonesian government. Hence, it does not meet the requirement of ‘torture’ under section 37U(1) of the Immigration Ordinance.  There is also no evidence that the Applicant is subject to capital punishment or at risk of genocide.   

22.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found, even on the case as she asserted, the Applicant had failed to establish the factual basis to support her claims for protection under any of the four applicable grounds under the USM and dismissed her appeal against the Director’s Notice.

The legal principles applicable to judicial review

23.  The function 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6].

Grounds for judicial review

24.  At the hearing, after the above legal principles were explained to her, the Applicant indicated that she had no complaint about error of law, procedural unfairness and irrationality in the Decision, but submitted that she has good reason to stay in Hong Kong. She said she was married to a Hong Kong citizen and is now applying for a dependent’s visa to stay in Hong Kong.  She has to stay in Hong Kong to breastfeed her child. She asked for time to enable her to wait for the approval of her visa application. She also repeated her problems arising from her late husband’s outstanding loan in Indonesia. She said the finance companies are still looking for her.

25.  Her entitlement to a dependent visa and her child feeding problems are not reasons for granting non-refoulement protection under the USM. If she needs time, she should make a proper application to the Immigration Department. She is abusing the non-refoulement regime by using judicial review proceedings as a means to her extend her stay in Hong Kong to await the outcome of her visa application. As for her claim about the loan, the Board found she had failed to establish that she would be subject to any of the proscribed risks of harm upon her return to Indonesia. That is a finding of fact which this Court may not intervene, save for errors of law, procedural unfairness or irrationality in the Decision.

26.  In her Form 86, the Applicant advanced the following four grounds of application:

(1)  The Decision was not reasonable and unfair in that the Adjudicator failed to give her sufficient time and chance to arrange relevant evidence. Her right to life is protected under BOR 2 risk ground.

(2)  The Director failed to give proper weight to the presence of state acquiescence. She was tortured at the behest of state law enforcement agencies as well as those in the high ups of political circles.

(3)  The Board acted unfairly by placing too much weight on COI without having regard to her personal background and experience.

(4)  The Board acted unfairly and improperly when assessing whether to accept or reject her explanations and unreasonably required her to respond to questions which she was not in a position to respond.

Some of these grounds are directed at the Director and some at the Board. For the benefit of the Applicant, it is assumed that all the grounds are directed at both the Board and the Director.

Ground (1) – Unreasonable and unfair

27.  This ground is framed in what appeared to be a very long and heavily loaded paragraph, quoting article 28 of the Basic Law and article 2 of the Bill of Rights and mentioning right to life and the extra-judicial killing which she would face if returned to Indonesia. These are high sounding principles and international obligations which Hong Kong honours to anyone whose life is at risk, provided she meets the criteria under any of the four applicable grounds under the USM. The question is whether the Applicant meets those criteria. The Board was of the opinion that she did not. That is a finding of fact exclusively within the province of the Board. The Applicant disagreed with that finding and complained that the Decision was unfair and unreasonable. However, with her confirmation before the Court that she had no complaint about procedural unfairness or irrationality in the Decision, this ground is deemed abandoned. Anyway, the Court will re-visit these issues in its overall scrutiny of the Decision.

28.  As for her complaint that the Board did not give her sufficient time and chance to arrange the evidence, it is just an unsupported bald assertion. Likewise, with her confirmation that there was no procedural unfairness in the making of the Decision, this complaint is also deemed abandoned.

Grounds (2) – State acquiescence; torture at the behest of state law enforcement agencies 

29.  The Applicant complained that the Director failed to give proper weight to the presence of state acquiescence and the fact that she was tortured at the behest of state law enforcement agencies as well as those in the high ups of political circles; and to take such argument into account. The only torture or ill-treatment the Applicant ever received was the threat of death, the demands for repayment and the bare allegations of harassment of unknown nature which did not cause her or her family any harm. There was no evidence that state law enforcement agencies were involved in those incidents. This ground is obviously copied from other applications for judicial review which has no bearing to the facts of this case.

Grounds (3) – Weighting on COI

30.  The Applicant complains about the weighting given to the COI. After referring to COI from credible and authoritative sources, the Board was satisfied that it would not be unduly harsh to expect the Applicant to relocate to other cities such as Medan and Denpasar to avoid the risk of harm. The Applicant had offered no argument or COI to contradict the COI referred to by the Board and its finding. This is a finding of fact within the realm of the Board to make which this Court in a judicial review will not interfere.

Grounds (4) – Unfairness and impropriety in assessing the Applicant’s evidence 

31.  The Applicant complained that the Board acted unfairly and improperly when assessing whether to accept or reject her explanations and unreasonably required her to respond to questions which she was not in a position to respond. The Applicant’s complaint about unreasonableness and unfairness is deemed abandoned with her confirmation that there was no procedural unfairness or irrationality in the Decision. The decision whether to accept or reject her explanation is essentially a finding of fact solely for the Board, which the Court will not intervene in a judicial review. Anyway, the Court will revisit this ground in its overall scrutiny of the Board’s Decision for errors of law, procedural unfairness and irrationality.

Overall scrutiny

32.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the 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.

33.  The Board’s primary finding is that the Applicant is incredible and rejected her evidence. This finding is a finding of fact solely within the realm of the Board to make, which this Court in an application for judicial review will not intervene, save for errors of law, procedural unfairness and irrationality.

34.  The Board went further and assessed the Applicant’s claim on the basis of her case as she asserted, but found she is not entitled to protection under any of the four applicable grounds under the USM. It is not the Applicant’s case that she is subject to a death sentence or at risk of genocide. The Board found that the ill-treatment suffered by the Applicant did not attain the minimum level of severity to entitle her to protection, that no government or public officials were involved in the ill-treatment of the Applicant. It found the harm arising from the Applicant’s disputes with the finance companies were private disputes and fall outside the protection of the Refugees Convention. These are mixed finding of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are finding of fact, the Board assessed the Applicant’s claim on the factual case as she asserted. The Applicant could have no reason to complain about the Board’s finding of these primary facts. The finding of facts are also 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 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 her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

35.  For the above reasons, leave to apply for judicial review 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