FENI KARTIKA APRIANI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2467/2019

[2025] HKCFI 752

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2467 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 the Applicant being absent in open court;

1.      Leave to amend the Form 86 be granted; 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 26 August 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Security Bureau dated 17 June 2019 in her USM case.  She named the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) as an interested party.  Her reference to USM, the Security Bureau, the Board and the fact that she is a non-refoulement claimant suggest that her intention is to seek a judicial review of the decision of the Board relating to her claim under the Unified Screening Mechanism.  Having called for and read the relevant decisions relating to her non-refouldment claim, it is obvious that her intention is to seek a judicial review of the decision of the Board dated 17 June 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 4 December 2018 (the “Notice”), refusing her non-refoulement application.  Leave was hence granted to amend the leave application as above to give effect to her intention.

2.  The Applicant had requested an oral hearing.  A hearing was scheduled for her on 21 February 2024 and the notice of hearing was sent to her by post on 27 January 2025 at her address as stated in the Form 86 and as confirmed by the Immigration Department on 24 January 2025 to be her last known address.   However, the Applicant did not appear at the hearing.  The notice was not returned through the normal course of mail.  There is nothing to suggest she had not received the notice or had moved from that address.  On the afternoon before the date of the hearing, a court staff attempted to contact her on the telephone number she gave to the Immigration Department.  The staff was informed by the telephone service provider that the telephone number had not been registered with the provider.  The Court was satisfied that the notice of hearing had been validly served on the Applicant and the Court had made its best endeavour to bring the hearing to her notice.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the leave application may be justly determined on paper in her absence.

Background

3.  The Applicant is an Indonesian national.  She entered Hong Kong to work as a foreign domestic helper on 22 February 2013.  After her employment was terminated on 24 January 2014, she went to Mainland China on 7 February 2014 and returned to Hong Kong on the same day.  She was allowed to stay in Hong Kong as a visitor.  She overstayed since 10 March 2014. She surrendered to the Immigration Department on 10 November 2016 and made a non-refoulement claim by way of written representation on 22 February and 30 August 2017.  In due course, 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]. Her application was rejected by the Director’s Notice. Her appeal was dismissed by the Board’s Decision.  She now applies for judicial review of that Decision.

The Applicant’s case

4.  The following account of the Applicant’s case is based on the information in the non-refoulement claim form prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer.  In gist, she claims that if returned to Indonesia, she will be harmed or killed by a loan shark (the “loan shark”) because she and her husband were unable to settle a loan owed to the loan shark.   

5.  The Applicant, now aged 39, was born in Timur, Indonesia.  She is married with one son. Her husband, son and three siblings are living in Indonesia.  She had twelve years’ formal education and seven years’ working experience as a domestic helper in Taiwan and Hong Kong.

6.  The Applicant claimed that in 2010, while working in Hong Kong, she discovered her husband had borrowed 60 million Indonesia Rupiah (“IDR”) in her name from the loan shark.  She did not know the terms and conditions of the loan.  She remitted money to her husband in Indonesia to repay the loan, but her husband did not repay the loan shark.  As a result, the loan shark called her many times from Indonesia to demand repayment and threatened to kill her if she did not settle the loan.  Out of fear, she changed her phone number to avoid the loan shark.  Yet, the loan shark still managed to call to threaten her.  Her husband also called to threaten her that if she did not help him to repay, he would torture her son.

7.  However, since 2013, she no longer received any threatening call from the loan shark.  In the same year, she returned to Indonesia and stayed at her employment agency in Surabaya for two months, during which time she did not encounter the loan shark.  She never reported the case to the police in Indonesia.

8.  The Applicant claims that state protection is not available in Indonesia and it is implausible to relocate within Indonesaia as she does not have the necessary financial resources and relatives in other places in Indonesia.

The finding of the Board

9.  The Applicant testified before the Board.  Seemingly, the Board accepted her evidence and assessed her claim on the basis of the account as she asserted.

10.  The Board considered it significant that the loan shark had ceased threatening the Applicant since 2013 and that neither the Applicant nor her family had been harmed at all.  If the loan shark had been serious about his threats, he would have at least caused some harm to her family in Indonesia to reinforce the threats.  Hence, the Board found the threats were just empty threats which the loan shark had no intention to execute and that the loan shark also found it pointless to keep making such threats which would serve no meaningful purpose at all.  Thus, the Board concluded there is no basis for the Applicant to be in fear of being harmed or killed by the loan shark.

11.  On the basis of objective country of origin information (“COI”), the Board accepted that there are police failures and corruption in Indonesia.  However, the same COI also suggested that there are objective indications that the Indonesian government has taken practical steps to maintain public order and safety in its jurisdiction and to enhance the effectiveness of the police.  It therefore considered that reasonable state protection is available to the Applicant in Indonesia, and there is no evidence to suggest that she would be denied of such assistance if and when needed.  Furthermore, the Board found the harm and risk of harm are localised in her home area.  Hence, as an able-bodied person, the Board found she could relocate to different parts of Indonesia to avoid the perceived risks of harm from the loan shark.  

12.  Accordingly, the Board found there could not possibly be any substantial grounds for finding that the Applicant would face any real risk of ill-treatment if refouled to Indonesia.  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 protection under any of the applicable grounds being considered.  It therefore dismissed her appeal against the Notice.

Legal principles applicable to judicial review

13.  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

14.  In Form 86 and supporting affirmation, the Applicant had not advanced any ground of appeal.  She only reiterated that her life would be at risk if she returned to Indonesia and that the Board’s Decision was not fair, but she gave no particulars.  

15.  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

16.  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 four 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 on the basis of her case as she asserted.  It was on that basis that the Board found the Applicant’s feared ill-treatment is not well-founded.  Then, applying the law applicable to non-refoulement protection to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds under the USM.  These are mixed finding of facts and of the law.  Insofar as they are finding of the law, the Board is absolutely correct. Insofar as they are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  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 Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

17.  For the above reasons, the leave application 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 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)]