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HCAL 2861/2019
[2025] HKCFI 2729
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2861 of 2019
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Siti Umianah |
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 Levy:
The Leave Application be dismissed.
Observations for the Applicant:
Introduction
1. By prescribed Form 86 filed on 30 September 2019, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 26 Sept 2019 (“Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 10 November 2017 (“Director's Decision”) rejecting the applicant’s non-refoulement claim.
2. On 18 March 2025, the court received a memo from the Removal Assessment and Litigation (Removal and Deportation) Section of the Immigration Department. Enclosed with the said memo is the applicant’s signed letter dated 10 March 2025 applying for withdrawal of the Leave Application. In the circumstances, this court will dispose of the Leave Application on paper.
Background
3. The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.
4. The applicant is a national of Indonesia. She last arrived in Hong Kong on 4 February 2005 to work as a domestic helper. Upon premature termination of her subsequent contract on 12 August 2007, she did not depart and overstayed since 27 August 2008. On 16 June 2014, she was arrested by police for overstaying. On 18 June 2014, she was convicted of the offence of breach of condition of stay and was sentenced to 6 months’ imprisonment. On 22 July 2014, she lodged a non-refoulement claim, covering all applicable grounds of torture risks[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on a fear of being ill‑treated by her ex-husband.
5. The applicant stated that in 1994 when she was 16, she was arranged to marry a man who was 25 years her senior. However, after the marriage, the applicant was assaulted and coerced into prostitution. If the applicant refused to receive customers, the husband would beat her up. In 1999, the applicant managed to escape and started to work as a domestic helper. When her employer learnt of the applicant’s situation, the employer arranged the applicant to leave Indonesia through an employment agent, which organized the applicant’s domestic helper contract in Hong Kong. When the applicant went back to Indonesia in 2004 to arrange for a new employment contract and apply for divorce, the applicant learnt that her ex-husband was still looking for her.
6. The Director decided against the applicant’s claim on all applicable grounds. Hence, the appeal to the Board.
7. In the Board’s Decision, whilst the Board could not dismiss the applicant’s account of the incidents of violence at the hands of her ex-husband, which the Board accepted would have reached a minimum level of severity, it however found that incidents there was no risk of the applicant being subjected to the ill-treatment if refouled. This was because the Board found that the applicant had not seen or heard from her ex-husband for some 15 years since her escape from the brothel. After having considered the relevant Country of Information, the Board found that both state protection and internal relocation were reasonably available. The Board dismissed her appeal and confirmed the Director’s Decision.
Legal principles applicable to judicial review
8. As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.
Discussion and conclusion
9. The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable. The grounds that applicant advanced in her Form 86 either do not concern with the Board’s Decision or are general and vague. The applicant has failed to identify any arguable error of law, any relevant matter that the Board had allegedly failed to consider or any other reason why the Board was wrong.
10. Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the four grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. In the absence of any specific grounds in support of the Leave Application, I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge her burden of proving the asserted fears and risks.
11. For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. The Leave Application is accordingly dismissed.
Withdrawal of Leave Application
12. In her affirmation, the applicant stated that she wanted to withdraw all her non‑refoulement claim in Hong Kong and requested a ticket to return home.
13. Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action. In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471, Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140.
Order
14. The Leave Application be dismissed.
Dated the 7thday of July 2025
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( Alfred Chan )
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 7/7/2025
Siti Umianah
Applicant’s ref. no:
Nil.
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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 7/7/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.: USM 9233/17/11/244/I908
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 2185/17 (formerly RBCZ 3002000/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] This refers to the risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap.115.
[2] This refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”).
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[5] This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293.
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