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

HCAL 2508/2024

[2025] HKCFI 1199

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2508 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 Susilawati (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 15 November 2024 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 11 September 2024 (“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 6 June 1983 in West Java, Indonesia.  She received 6 years of education and had 8 years of work experience as garment factory worker and domestic helper.

3.  The Applicant claimed that her ex-husband (“Husband”) had a history of domestic violence towards the Applicant.  The Applicant’s parents had once reported against Husband to the police.  The police only asked Husband to stop assaulting the Applicant.  Husband did not stop and threatened to kill the Applicant if she reported against him to the police again.  Husband kept asking the Applicant for money and title deed for her property to which the Applicant refused.  In 2021, Husband showed divorce papers to the Applicant in a video call and threatened to kill her if she found another man.  She had no contact with Husband since then.

4.  Husband’s creditor (“Creditor”) also threatened to kill the Applicant if she did not repay Husband’s debt to the Creditor.  The Applicant was told by her family members that the Creditors and her underlings visited the Applicant’s parental home once in 2 to 3 weeks and threatened to kill the Applicant but did not harm the Applicant’s family members.  The Applicant’s parents reported the threats to the police but the police did nothing.

5.  She claimed that she would be harmed or killed by Husband or the Creditor upon her return to Indonesia.

6.  The Applicant last arrived in Hong Kong on 6 February 2020 for employment as foreign domestic helper.  Her employment contract was terminated on 27 July 2022.  She was required to leave Hong Kong within 2 weeks of termination of her employment.  She did not leave and overstayed in Hong Kong since 11 August 2022.  She was arrested by the Immigration Department on 6 November 2023.  She lodged the Claim on 2 April 2024.

7.  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 (“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”).

8.  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.

9.  On 17 December 2024, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the DOI Decision and 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.

Legal principles applicable to judicial review

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

11.  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.”

12.  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

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

14.  In the Supporting Affirmation, the Applicant only exhibited the Board’s Decision but no other supporting documents and did not put forward any ground for her intended judicial review.

15.  The Applicant attended the court hearing on 11 February 2024.  At the court hearing, she only stated that she still had problems in Indonesia and she wanted to stay in Hong Kong.  However, she was unable to identify any error of law, procedure unfairness or irrationality in the Board’s Decision.

16.  For reasons set out in §§41-44 of the Board’s Decision, the Board found that the threats from Husband to kill the Applicant were just empty threats. It noted that he had been abusive towards the Applicant for many years but he never caused her serious harm.  Against this history, the Board found it unlikely that Husband would cause her serious harm or kill her if she were to return. 

17.  For reasons set out in §46 of the Board’s Decision, The Board also found the threat from the Creditor an one-off incident and unlikely to be carried out.

18.  Lastly, the Board found that internal relocation to other cities, such as Jakarta, would be viable to the Applicant.  The Board noted that the Applicant had overseas working experience, and she would have no difficulty living away from her hometown. (§§57-61 of the Board’s Decision)

19.  As pointed out in the Nupur Mst (supra) case, assessment of evidence, country of origin information materials, risk of harm, 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.

20.  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.

21.  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 relevant 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.

22.  In §§38-56 of the Board’s Decision, the Board had considered the Claim under each of the 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.  The Board found her claim under the persecution risk failed as her case was a case of domestic dispute and loan dispute which 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 nothing in the Applicant’s case to support her claim under the BOR 2 risk.

23.  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

24.  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