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HCAL 103/2020
[2025] HKCFI 1277
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 103 OF 2020
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Saini |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated 9 January 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board") dated 24 December 2019 (“the Board's Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000103_2020_files/the_Board's_Decision.pdf
2. The Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 4 March 2019 and confirmed the same. The Director rejected the applicant’s non-refoulement claim as it was not established.
Amendments
3. The applicant named both the Board and the Immigration Department as the putative respondents and the putative interested parties in Form 86, when only the Board should be named as the putative respondent and only the Director should be named as the putative interested party. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.
The applicant’s case
4. The applicant’s case (as detailed in the Board’s Decision) can be briefly summarised as follows:-
(1) The applicant is a female Indonesian national born in Ponorogo, East Java, Indonesia on 27 September 1981. She received 12 years of formal education. She worked as a domestic helper in Taiwan from 2001 to 2003 and in Hong Kong from 2003 to 2011.
(2) The applicant last arrived in Hong Kong by ferry on 27 February 2011 as a foreign domestic helper, and was allowed to stay until 6 October 2012. Her employment was terminated on 24 June 2011, but she overstayed.
(3) On 13 May 2014, the applicant was intercepted by immigration officers for the offence of breach of condition of stay by overstaying, taking unapproved employment, and using a false instrument. She then lodged a non-refoulement claim to the Director on 15 August 2014.
(4) The applicant was discharged from prison and was transferred to the Immigration Department on 2 April 2015. A removal order was issued against her and served on her on 4 May 2015.
(5) The applicant withdrew her non-refoulement claim on 23 May 2016. However, the applicant filed her non-refoulement claim again on 30 November 2018.
(6) The applicant claimed that if refouled, she would be harmed or killed by her father’s creditors, as she was the guarantor of her father’s loan. She alleged that the creditors had called to threaten her that they would locate her and kill her if she failed to settle the debts. She also alleged that the creditors had asked her family for her whereabouts, and they assaulted her father on several occasions because they could not find her.
(7) With the introduction of the Unified Screening Mechanism (“the USM”), her non-refoulement claim was assessed on all the applicable grounds including:-
(a) risk of torture under Part VIIC of the Immigration Ordinance;
(b) risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance;
(c) risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance; and
(d) risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.
(8) The Director rejected the applicant’s claim on 4 March 2019 and the applicant appealed to the Board on 13 March 2019.
Grounds for judicial review
5. The applicant is required to identify clearly the grounds for her intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
6. However, the applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 9 January 2020. She merely stated in her affirmation that she would like to reject and review the Board’s Decision and “They disagreed our dangerous situation” [sic].
Oral hearing
7. The applicant requested for an oral hearing of the Leave Application, and the hearing was fixed on 7 March 2025. The applicant did not advance any grounds for the intended judicial review at the hearing. She merely stated that she is married to a Hong Kong resident and has two children who are also Hong Kong residents. The Director rejected her application for dependent visa as she has criminal records in Hong Kong.
Discussion
8. 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[2018] HKCA 524).
9. In Po Fun Chanv 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 a reasonably arguable claim which enjoyed realistic prospects of success.
10. The applicant did not advance any grounds for her intended judicial review. The statement that the Board disagreed on her dangerous situation does not amount to any ground for judicial review. In any event, the Board did consider her alleged dangerous situation. The Board is entitled to come to its own conclusion. If she is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
11. The mere fact that she has a husband and two children who are Hong Kong residents is not relevant to her claims for non-refoulement protection.
12. In the absence of proper grounds for the Leave Application, this court could only review the Board’s Decision by scrutinizing it for errors of law, procedural unfairness and irrationality.
13. In assessing the appeal by the applicant, the Board adopted the approach of a re-hearing where all the evidence and applicable grounds under the USM were considered afresh. The Board held a hearing on 24 September 2019 in order to be fair to the applicant and to enable her to supplement her case and grounds of appeal to the Board in person. It also enabled the Board to ask her questions in order to understand her case better.
14. The Board carefully assessed the applicant’s claim on those matters asserted by her, but the Board found that she was not a credible witness. Her evidence concerning her father’s loan was vague, unreasonable and full of contradiction in a number of aspects, such as the terms and conditions of the loan agreement, the current outstanding amount, whether she made any periodic payment, and whether she received threatening calls from the creditors directly or through her father. The Board found that the applicant had never been assaulted by the creditors, and she gave different accounts of the occasions where violence was inflicted on her father by the creditors.
15. The Board re-assessed the applicant’s claim on all the applicable grounds under the USM.
16. After due consideration of the law and the evidence as presented by the applicant, the Board found that the applicant failed to prove her feared ill-treatment, risk of right to life, risk of torture and risk of persecution. Hence, the Board concluded that the applicant was not entitled to non-refoulement protection under any of the applicable grounds.
17. In assessing the availability of state protection and the viability for the applicant’s internal relocation, the Board had referred to various country of origin information for the applicant’s country from different sources. The Board considered that the applicant should be able to obtain assistance from state authorities if she needed it. Further, being an able-bodied adult who had received 12 years of formal education and had 10 years of working experience, the applicant could safely relocate to other places within Indonesia without undue hardship.
18. Having rigorously examined the Board’s Decision 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 the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision.
19. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. Thus, the intended judicial review has no realistic prospects of success at all, and the Leave Application must be dismissed.
Conclusion
20. For reasons aforesaid, the Leave Application is dismissed.
Dated the 2nd day of April 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 his 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/Handed to the applicant/the applicant’s solicitors
on: 2/4/2025
Applicant’s ref. no:
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Sent/Handed 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: 2/4/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 15688/19/3/53/I1657
Director of Immigration
Putative interested party’s ref. no.: QA T/C 25/19 (formerly RBCZ 1/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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