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HCAL 244/2023
[2025] HKCFI 2264
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 244 of 2023
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Susiyanti |
Applicant |
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and
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration
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Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge To:
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 17 February 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”) dismissing her appeal against the decision of the Director of Immigration refusing her application for non-refoulement protection. Her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].
The Applicant’s case
2. The Applicant is an Indonesian national, now aged 29. She is married with one daughter. Unknown to her, her husband had borrowed a sum of 50 million Indonesian Rupiahs from a loan shark, but had never made any repayment. She had no knowledge about the terms and other details of the loan. Her husband deserted her after two months. Since early 2016, the loan shark and his associates started approaching her for repayment. They damaged her property and threatened to kill her if she did not pay. Her parents made a report to the police, but the officers seemingly took no action. The Applicant went to work in distant places to avoid the loan shark. Then the loan shark threatened through her parents to kill her if she did not repay. Eventually, she came to work as a foreign domestic helper in Hong Kong in 2017. She remitted part of her earning to her father for repaying the loan shark. Her employment was prematurely terminated on 19 August 2020. She could not make further payment. In gist, her claim is that she will be harmed or killed by the loan shark, if she is returned to Indonesia for being unable to repay her husband’s loan owing to the loan shark.
The finding of the Board
3. Though the Board had some doubts about the veracity of the Applicant’s claim arising from her failure to make a prompt complaint in Hong Kong after her employment was terminated and her return to Indonesia became imminent, it assessed her claim on the basis of the case as she asserted. While accepting that the loan shark had threatened her, her evidence was that he gave her extension of time to repay and never hurt her or her parents. The Board found the loan shark had no real intention to harm or kill her. The threats were uttered to pressurise her to repay. It found the ill-treatment suffered by the Applicant did not attain the minimum level of severity, that no government or public official were involved in ill-treating her and that her fear of ill-treatment did not arise on account of any reason protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support her claims for non-refoulement protection under any of the applicable grounds under the USM. Hence, it dismissed his appeal against the Director’s Notice.
The legal principles applicable to judicial review
4. 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[5].
Grounds for judicial review
5. The Applicant did not put forward any grounds of application for judicial review in her Form 86. In her supporting affirmation, she only repeated her fears and asserted that she could not go back to her home country. In effect, she is seeking to challenge the Board’s finding of fact that she had failed to prove that she would face real harm or real risk of harm if returned to Indonesia. For reasons as explained in the above paragraph, this is not permissible in an application for judicial review.
6. At the hearing, after the legal principles in the preceding section had been explained to her, she confirmed that she had no complaint about error of law, procedural unfairness or irrationality. 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
7. 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 applicable to non-refoulement protection 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 accepted the factual case as submitted by the Applicant. The Applicant could not have any complaint about this finding of fact by the Board. The Board analysed her evidence carefully, tested it against common sense and inherent probability. It made further finding of facts from those evidence. 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 four 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 his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
8. For the above reasons, the leave application is refused.
Dated the 3rd day of June 2025
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( Seline Sze ) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 03/06/2025
Susiyanti
Applicant’s ref. no: |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 03/06/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 18935
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1433/21 (formerly RBCZ 10666/21) (T2I118)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
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