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

HCAL 1249/2023

[2025] HKCFI 1497

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1249 of 2023

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 Erningsih (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 30 June 2023 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 30 January 2023 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is an Indonesian.  She was born on 10 October 1980 in West Java Province, Indonesia.  She received 6 years of education and had 17 years of work experience as a domestic helper.

The Claim

3.  The Applicant first came to Hong Kong to work as a foreign domestic helper in 2014.  The Applicant married her ex-husband (“YS”) in Indonesia in early 2019 and came to Hong Kong in February 2019 to work as a foreign domestic helper again. 

4.  About a year after the Applicant’s marriage, the Applicant’s mother (“Mother”) told her over the phone that Mother wanted to borrow 250 million Indonesian Rupiahs from YS’s family (“Loan”).  The Applicant agreed to Mother’s borrowing of the Loan.

5.  A few days later, Mother told the Applicant that the Loan money had been received.  The interest was 50 million Indonesian Rupiahs and it would be due in one year.  About a week later, YS’s mother told the Applicant that she would be responsible for the Loan if Mother could not pay it back.  The Applicant agreed.

6.  About two months later, Mother passed away due to hypertension and diabetes.  The Applicant’s father also passed away 10 days later. 

7.  After Mother’s death, YS’s mother called the Applicant from time to time to ask for repayment of the Loan.  By the end of 2021, YS unexpectedly divorced the Applicant in Indonesia.

8.  The Applicant’s employment contract in Hong Kong was unexpectedly terminated on 13 May 2022.  About a week later, YS and his parents called the Applicant and asked her to pay back 300 million Indonesian Rupiahs or she would be killed (“Phone Call”).  The Applicant changed her number on the same day and she did not have any further contact with YS or his family.

9.  The Applicant claimed that she would be harmed or killed by YS and his family if she were returned to Indonesia. 

Procedural history

10.  The Applicant last arrived in Hong Kong on 21 July 2019 to work as a foreign domestic helper.  After her employment contract was terminated prematurely, she did not leave Hong Kong within the prescribed period, i.e. on or before 27 May 2022 and overstayed in Hong Kong.

11.  The Applicant was arrested by the police on 19 October 2022.  By written representations made in October and November 2022, the Applicant lodged the Claim.  The Director had considered the Claim on all applicable grounds under the unified screening mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Ordinance”);

(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”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the BOR (“BOR 3”); 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”).

12.  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.

13.  On 21 July 2023, 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 as the proposed respondent and the Director as the interested party.

14.  By a letter dated 30 September 2024, the Applicant sought to withdraw this intended judicial review application stating that it was safe for her to go back to Indonesia and she wanted to go back to her country (“Withdrawal Application”).  The Applicant repeated her aforesaid request in another letter dated 17 October 2024.

15.  The Director subsequently informed the court that the Applicant had been removed in January 2025. 

16.  As the Applicant had been removed from Hong Kong in January 2025, I decided to deal with the Applicant’s application for leave for judicial review on papers.    

The DOI Decision

17.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that YS and his family intended to harm the Applicant.  This was because YS and his family did not issue any threat towards her until May 2022, which was about a year after the supposed due date of the Loan (i.e. early 2021).  They also did not harass the Applicant’s relatives in Indonesia or take any other action against her after she changed her phone number to avoid them.

18.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that the Indonesian government was able and willing to protect the rights of its citizens and reasonable state protection would be available to the Applicant, if necessary.

19.  The Director further found that internal relocation would be viable.  If the Applicant moved to Bali or Surabaya, it would be difficult for YS and his family to locate her.  After considering her age and work experience, the Director found that it would not be unduly harsh to expect her to relocate and lead a normal life.

20.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

21.  The Board identified some serious issues with the Applicant’s evidence at §§54 – 58 of the Board’s Decision but ultimately accepted, on the balance of probabilities, that she was threatened by YS and his family for an outstanding loan taken out by Mother.

22.  The Board noted that other than the Phone Call, there was no other threat or incident related to the Loan.  It found that the threat issued in the Phone Call was “[no] more than angry and emotional words, spoken by [YS’s family members] in the heat of the moment” and that looking at the events as a whole, there was no evidence to show a genuine, real or personal threat to seriously harm or kill the Applicant.

23.  The Board found that the Applicant was not at risk from YS or his family upon her return to Indonesia.  It further found that even if she faced a serious risk of harm upon her return, she could mitigate the risk by relocating to Jakarta where she would be able to find employment given her past work experience.  The Board found that internal relocation would be viable and it would not be unduly harsh to expect her to relocate.

24.  In §§68-78 of the Board’s Decision, the Board considered the Claim under each of the applicable grounds under the USM.  The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM.  The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

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

26.  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.”

27.  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

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

29.  In the Supporting Affirmation, the Applicant maintained that her life was still under threat if she were to return to Indonesia.  She put forward the following grounds for her intended judicial review:

(1)  the Adjudicator did not consider her claim and directly dismissed her claim;

(2)  she had submitted documents in her mother language to the Adjudicator but the Adjudicator did not accept them because he could not understand;

(3)  she requested time to arrange for translation of her documents but “my officer had no time”; and

(4)  the translator/interpreter was not helpful and asked her not to take long time for interview.

30.  In the Supporting Affirmation, the Applicant only exhibited a copy of the Board’s Decision without other supporting documents.  The aforesaid grounds were mere bare assertions without particulars or supporting evidence.  Without particulars and supporting evidence, such grounds are not reasonably arguable.

31.  The Board had considered the Claim and set out reasons for its findings and rulings in the Board’s Decision.  I do not see how the Applicant may substantiate her assertion in the Supporting Affirmation that: “Adjudicator did not consider my claim.  Adjudicator directly dismissed.  He did not even take time or did not think about my life.”

32.  In the Board’s Decision, there was no mention of the Applicant requesting to submit further documents to the Board at the Appeal hearing. The Applicant provided no particulars nor supporting evidence to substantiate her complaints. 

33.  Furthermore, the Applicant had not specified in the Supporting Affirmation what further documents submitted had been rejected by the Board nor exhibited such documents to the Supporting Affirmation.  The Applicant’s such assertions were only vague and bare assertions.  I find no merits in her such complaints.

34.  The Applicant complained that the interpreter did not assist her.  In §9 of the Board’s Decision, the Board recorded that the Applicant had answered questions from the Board with the assistance of the interpreter.  If the interpreter had failed to assist her at the screening interview before the Immigration Officer or at the Appeal hearing before the Board, she could raise that with the interviewing officer or the Board.  There was no record of such complaints.

35.  I see no merits in the Applicant’s complaint on the language issue.

36.  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 did the Board take into account irrelevant matters or fail to take into account relevant matters. 

37.  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 applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness. 

38.  The Board found that the Applicant had failed to establish, even to the low standard required, that there were substantial grounds for believing that she would be liable to be subjected to “torture” as defined in Section 37U(1) of the Ordinance or subjected to ill-treatment of any sort, if she was refouled to Indonesia.

39.  The Board was not persuaded, even to the low standard required, that the Applicant would face a genuine and substantial risk of being subject to ill-treatment, of any sort, if she were refouled to Indonesia.  Her claim under the BOR 3 risk failed.

40.  The Board found that the Applicant had failed to establish, even to the low standard required, that there was a real risk, or a real chance, that she would be arbitrarily deprived of her life in contravention of the BOR 2 or suffer any ill-treatment which might amount to persecution, for any of the reasons referred to in Article 33 of the Refugees Convention.  She had failed to establish that her fear of persecution was well-founded.

41.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the applicable grounds under the USM.  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.  

The Withdrawal Application

42.  The Applicant subsequently made the Withdrawal Application stating that she was safe to return to her country.  She wanted to return to her country as soon as possible.  She asked to withdraw this application for judicial review.

43.  There is no evidence to suggest that the Applicant made the Withdrawal Application other than out of her own volition.

44.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

45.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

46.  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.

47.  As the court had been notified by the Director that the Applicant had been removed from Hong Kong in January 2025 and the Applicant has not informed the court of any change of her address for service, the court will send a copy of this judgment and the sealed order to the Applicant at her last address on records with a copy set to the Director and request the Director to use his best endeavor to forward them to the Applicant.

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