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

HCAL 2645/2019

[2025] HKCFI 3345

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2645 of 2019

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 10 September 2019 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 13 June 2019 (the “Decision”).  Enquiries with the Board revealed that the Board had only made a decision dated 17 July 2019 in respect of the Applicant dismissing her appeal against the decisions of the Director of Immigration (the “Director”) refusing her application for non-refoulement protection and that appeal was heard on 13 June 2019.  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 “17 July 2019” to give effect to her intention.

2.  The Applicant had not requested an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the Notice, the papers, and all the circumstances, the Court considered that the application could be justly determined on paper without an oral hearing.

Background

3.  The Applicant is an Indonesian national.  She last entered Hong Kong on 29 March 2017 to work as a foreign domestic helper.  She overstayed since 13 April 2017 after her employment was prematurely terminated.  She was arrested by the police for overstaying on 29 March 2018.  On 5 June 2018, she made an application for non-refoulement protection.  Her non-refoulement claim was assessed on all applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1], BOR 2 Risk^[2], BOR 3 Risk^[3] and Prosecution Risk^[4].  It was rejected by the Director.  Her appeal against the Director’s decision was dismissed by the Board’s Decision.  She now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

4.  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 (“ROI”) in the presence of her lawyer.  In gist, she claims, if returned to Indonesia, she will be harmed or killed by her husband because she had previously asked for a divorce and that her husband had become aware that she had been pregnant by another man in Hong Kong. 

5.  The Applicant, now aged 38, was born in Blitar, East Java, Indonesia.  She had received 14 years’ formal education.  She had four years’ experience working as a foreign domestic helper in Hong Kong.  She is married with three children. 

6.  Her husband was a farmer.  He indulges in gambling and in a luxurious lifestyle.  Since working in Hong Kong, the Applicant regularly remitted money to him for the family. Despite her tolerance, he did not change his lifestyle.  The Applicant learnt from her children that he had threatened to kill them when they asked him not to live the lifestyle he was pursuing. 

7.  In about December 2015, whilst she was on holiday in Indonesia, the Applicant told her husband that she wanted a divorce.  He threatened to kill her if she mentioned that again.  When she repeated her demand over the phone in about April 2016, he refused and threatened to kill her and her children if she returned to Indonesia to divorce him.  Her parents also told her that he had been to their home and repeated the threat.

8.  Because of her husband’s threat, the Applicant decided to overstay when her employment was terminated.  Later she developed a relationship with a man and became pregnant.  The pregnancy ended with an accidental miscarriage.  On learning about the news, her husband went to her parents’ home and threatened to kill her.  He told them that he will not let the Applicant have access to her children when she returned to Indonesia and will kill her and her children if she met them secretly.       

9.  The most serious attack the Applicant had ever suffered from her husband was that he slapped her when she found out he had an affair.  She self-treated the injury and did not seek assistance from the police.  That incident took place before she came to Hong Kong

10.  The Applicant believes she could not access state protection because the police and authorities in Indonesia are corrupt.  She does not believe internal relocation feasible for her husband could locate her throughout the country.

The finding of the Board

11.  The Board found that neither the Applicant nor any of her family members ever suffered any physical violence from her husband, other than the one occasion when she argued with him about his affair with another woman.  All the ill-treatments she received from her husband were verbal threats to kill her and her children.  Some of these threats were hearsay from her parents. The Board found from the fact that her husband threatened to kill her only if she mentioned divorce to him again indicated that he had no real intention to harm or kill the Applicant or her children.  It noted that he had ample opportunities to carry out those threats when she was on holidays in Indonesia, but he did not even harm her.  The Board considered it significant that no physical ill-treatment had been applied to any members of the family, including her children who remained in Indonesia.  It also found that the Applicant and her parents did not take his threats seriously as none of them had reported the threats to the police. 

12.  The Board found that the dispute between the Applicant and her husband was solely a private matter.  There was no evidence that any public official or other person acting in an official capacity was involved, actively or otherwise, in the husband’s ill-treatment on the Applicant in the past or would be possibly in the future.  It also found that the feared ill-treatment did not arise out of a reason protected under the 1951 Convention relating to the status of Refugees and its 1967 Protocol, ie race, religion, nationality, membership of a particular social group or political opinion.  The Board also found the feared ill-treatment does not fall within the meaning of ‘torture’ under section 37U(1) of the Immigration Ordinance.  Applying the law applicable to the non-refoulement protection under the USM to the above finding of facts, the Board found that the Applicant had failed to establish the factual basis to support her claims for protection under any of the applicable grounds under the USM.  

13.  The Board further found on the basis of authoritative country of origin information, that despite the problem of corruption in the police and the authorities in Indonesia, reasonable state protection would be available to the Applicant in Indonesia.  It also rejected the Applicant’s belief that the police and authorities would not provide assistance to her and that her husband could locate her anywhere in Indonesia to harm her speculative.  It found the risk of harm from the husband was localized and considered it would not be unreasonable or unduly harsh for the Applicant, being a body-abled person with overseas working experience, to relocate to other parts in Indonesia to negate the perceived risk of harm from her husband.  Hence, the Board dismissed the Applicant’s appeal against the decision in the Notice.

Legal principles applicable to judicial review

14.  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[5].  

Grounds for judicial review

15.  The Applicant did not advance any ground of appeal in the Form 86, or in her supporting affirmation.  She merely reiterated that she would be killed by her husband upon her return to Indonesia.  In effect, she is seeking to challenge the Board’s finding of fact that she had failed to prove that she would face any 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.  

16.  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

17.  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 assessed the Applicant’s claim primarily on the basis of her case as she asserted. 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 applicable grounds under the USM.  These are mixed finding of fact and of the law.  Insofar as these are finding of the law, they are absolutely correct.  Insofar as these are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save for error of law, procedural unfairness and irrationality in the Decision. 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 proposed judicial review has no realistic prospect of success.

Conclusion

18.  For the above reasons, leave to amend the Applicant’s 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] 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 violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[3] 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”)

[4] 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

[5] [2018] HKCA 524 at [14(1)]