YULIANI EVIK NURNINGSIH v. TORTURE CLAIMS APPEAL BOARD

HCAL 102/2020

[2025] HKCFI 1635

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 102 OF 2020

Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and the applicant being absent in open court ;

1.   On this court’s own motion, “Director of Immigration” be added as the putative interested party and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 29 November 2019”.

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 decisions of the Torture Claims Appeal Board ("the Board") dated 14 January 2019 and 3 September 2019. 

2.  There were in fact no such decisions of the Board dated 14 January 2019 and 3 September 2019.  These two dates were the dates of oral hearing before the Board.  The Board’s decision was in fact dated 29 November 2019 (“the Board’s Decision”).  Thus, this court will treat the Leave Application as being made in respect of 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/HCAL000102_2020_files/the_Board's_Decision.pdf

3.   The Board decided that the applicant was unable to make out her non-refoulement claim, rejected the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 17 September 2018 on all the applicable grounds under the Unified Screening Mechanism (“the USM”)and confirmed the Director’s said decision.

Amendments

4.  In Form 86, the applicant did not name any proposed interested party, when the Director should be the putative interested party.  As aforesaid, the applicant wrongly identified the decision in respect of which relief is sought under the Leave Application.  Thus, on this court’s own motion, “Director of Immigration” is added as the putative interested party and the decision in respect of which relief is sought under the Leave Application is amended to the Board’s Decision.

The applicant’s case

5.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

6.  In sum, the applicant claimed for non-refoulement protection because she feared further domestic violence and being killed by her husband, if she were to return to Indonesia.  She also feared persecution and further harm by her husband because of her lesbianism as she had found a partner in Hong Kong.

Oral hearing

7.  The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 25 March 2025.

8.  As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application.  The correct approach is to treat the applicant as having withdrawn her request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

9.  Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

Grounds for judicial review

10.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

11.  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 does not want to go back to Indonesia because she still has the problem with her husband and Hong Kong is safer for her to stay.

Discussion

12.  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).

13.  As the applicant did not advance any specific ground for the intended judicial review, and her allegation that her problem with her husband remains unresolved cannot amount to a ground for judicial review, there is no reason for this court to grant her leave to apply for judicial review.  However, for the sake of completeness, this court will proceed to examine and scrutinize the Board’s Decision for any error of law, procedural unfairness and irregularities.

14.  In assessing the appeal by the applicant, the Board held two oral hearings on 14 January 2019 and 3 September 2019 respectively.  After due consideration of the law and the evidence as presented by the applicant, the Board concluded that the applicant failed to establish a genuine and substantial risk of ill-treatment, violation of her right to life, torture and persecution.  The Board further concluded that state protection is available and internal relocation is viable.  In fact, the applicant also expressed that she did not intend to return to her home village in any event.  Thus, the Board found that the applicant was not entitled to non-refoulement protection under any of the applicable grounds. 

15.  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. 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.  

16.  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 a reasonably arguable claim which enjoyed realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

17.  For reasons aforesaid, the Leave Application is dismissed.

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