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

HCAL 2089/2019

[2025] HKCFI 832

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2089 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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Madam Suliani (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 25 June 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 10 January 2019 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“NRC”).

Background of the Applicant and the NRC

2.  The Applicant is an Indonesian born on 16 June 1970. She received 7 years of formal education.

3.  She worked as a foreign domestic helper in Hong Kong since 1990. She was last permitted to stay in Hong Kong until 20 March 2008. She overstayed in Hong Kong and was arrested by the police on 2 February 2012.

4.  The Applicant claimed that in 1998 she borrowed 50 million Indonesian Rupiah (“IDR”) (“Loan”) from a moneylender (“Moneylender”) in Indonesia. She was required to repay 5 million IRD each month plus an amount of interest until the Loan was repaid. She could not recall the amount of interest she had paid.

5.  From mid-2004 onwards, the Applicant was unable to repay the agreed monthly instalment. Since then, she received nuisances calls from the Moneylender who kept threatening to kill the Applicant upon her return to Indonesia if she did not repay the Loan.

6.  The Applicant had once returned to Indonesia in September 2004 for holiday. She did not tell anyone of her return and stayed in her friend’s place in Central Java. She encountered no trouble during her stay in Indonesia on that occasion. She came back to Hong Kong in October 2004 to work and did not return to Indonesia since then.

7.  The Applicant claimed that the Moneylender would harm or even kill her upon her return to Indonesia because she was unable to repay the Loan.

8.  She lodged a torture claim on 4 June 2012 (“CAT Claim”) under Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (currently under Part VIIC of the Immigration Ordinance, Cap. 115) (“torture risk”). The Director rejected the CAT Claim on 31 January 2013 and her appeal to the Board in respect of the CAT Claim was dismissed by the Board on 26 March 2013. The CAT Claim was thus concluded.

9.  On 24 September 2013, the Applicant lodged the NRC. The Director assessed the NRC on all applicable grounds other than the torture risk under the unified screening mechanism (“USM”), namely:

(a)  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”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

(c)  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”).

10.  By the DOI Decision, the Director refused the NRC. 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.

11.  On 22 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed her supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Board and the Immigration Department as the proposed respondents and interested parties.

Legal principles applicable to judicial review

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

13.  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.”

14.  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

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

16.  In the Supporting Affirmation, the Applicant exhibited the Board’s Decision and wrote:

“Attached copy of Decision marked as ‘A’.

1. It has been for more than 7 years since a bankruptcy order was made against me.

2. I now apply for a certificate of discharge pursuant to rule 92 of the bankruptcy rules chapter 6

3. The official receiver / my trustee raised no objection to my application, referred to me as exhibit “A” is the letter issued to me by official receiver”

17.  These grounds are plainly unrelated to the Board’s Decision. The Applicant exhibited to the Supporting Affirmation the Board’s Decision but no document from the official receiver nor any other supporting documents.

18.  The Applicant failed to attend the court hearing scheduled for 4 February 2025 despite a notice of hearing dated 13 January 2025 having been sent to her and not being returned. I proceeded with her application according to papers placed before the court.

19.  The Board accepted that the Applicant had a loan dispute with the Moneylender but this occurred some 15 years ago. The evidence adduced by the Applicant suggested that she had only been threatened by the Moneylender over the phone and had never been attacked at all. The Board found that there was nothing to suggest that the Moneylender intended to carry out the verbal threats against her or was still interested in locating her.

20.  The Board noted that the Applicant never reported the Moneylender to the Indonesian authorities. It found that state protection would be available to her in Indonesia and internal relocation would be viable.

21.  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 was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how the Board took into account irrelevant matters or failed to take into account relevant matters.

22.  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 for seeking non-refoulement protection; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

23.  Evidence suggested that the Applicant had never been attacked at all. The Board did not find that the Applicant would be subjected to the BOR 3 risk. The Board found that the Applicant’s case at its highest was a case of loan dispute between private citizens and it had nothing to do with any of the reasons referred to in Article 33 of the Refugees Convention. Her claim under the persecution risk failed. The Board also found that there was nothing to support the Applicant’s claim under the BOR 2 risk.

24.  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

25.  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 NRC, 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