YULIYAH v. TORTURE CLAIMS APPEAL BOARD

HCAL 2014/2023

[2025] HKCFI 4582

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2014 OF 2023

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 andoral submissions by the applicant or counsel in open court;

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 to withdraw the application for leave to apply for judicial review be refused.

3.      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 and filed on 10 November 2023, 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 2 November 2023 (“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/2023/HCAL002014_2023_files/the_Board's_Decision.pdf

2.  The Board found that the applicant was unable to establish a real risk pertinent to any of the applicable grounds under the Unified Screening Mechanism (“the USM”) regarding her non-refoulement claim.  Hence, the Board dismissed her appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 10 March 2023.

Amendments

3.  In Form 86, the applicant named the Board and “non-refulement Claims Petition Office” as both the putative respondents and the putative interested parties, when only the Board should be the putative respondent and the Director should be the putative interested party. 

4.  The Non-refoulement Claims Petition Office should not be named as a party at all, as it is just an office providing administrative and secretariat support to the adjudicators of the Board.

5.  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

6.  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.

7.  In sum, the applicant claimed for non-refoulement protection because she feared that, if refouled to Indonesia, she would be ill-treated and even killed by her husband and the loan shark from whom her husband borrowed 300 million Indonesian Rupiahs.

Withdrawal of the Leave Application

8.  By way of an affirmation dated 30 May 2025, the applicant made an ex parte application to cancel all her non-refoulement claims including appeal/judicial review.

9.  Further, by way of a letter dated 16 June 2025, the Director notified this court that the applicant wrote a letter dated 13 June 2025 to withdraw all her non-refoulement claims in Hong Kong.

10.  There is no evidence to show that the applicant made the above withdrawal applications other than out of her own volition.  With the withdrawal applications, it is clear that the applicant no longer wishes to proceed with the Leave Application, including any oral hearing of the Leave Application previously requested by the applicant.

11.  However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 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.”

12.  Thus, it is just not right to leave the action at large by granting leave to withdraw to the applicant.  This court will proceed to determine the merits of the Leave Application.

Grounds for judicial review

13.  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).

14.  The applicant did not advance any ground for the intended judicial review in Form 86, nor in her supporting affirmation dated 10 November 2023.  She merely stated in the affirmation that she could not go back to Indonesia and her life was in danger because the loan shark would kill her due to her inability to repay the debts.

Discussion

15.  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).

16.  Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

17.  The applicant was afforded an oral hearing before the Board on 18 September 2023 and the applicant was present.  Thus, the applicant did have the opportunity to present her case to the Board in person.

18.  The Board found multiple significant inconsistencies between the applicant’s oral testimony before the Board and the information she supplied to the Director, which could not be explained off by the applicant’s description of forgetfulness.

19.  The core of the applicant’s case was the threats from her husband and her husband’s creditor.  The Board found it incredible for the applicant to have messed up if her husband had made one call or many calls; if her husband had threatened her or not; and if the creditor of her husband had ever called her.  The Board concluded that her evidence had to be rejected.

20.  The Board also proceeded to assess the applicant’s claims as if the applicant’s descriptions of her case were accepted.

21.  The Board found that the applicant’s case was only a private matter.  The applicant had never sought assistance from the police or government authorities.  Nothing in the case could show that any acts or acquiescence by the state or public body would be involved in oppressing the applicant when she returned to her country.  The element of official capacity could not be established.

22.  It was the applicant’s own testimony, which she confirmed to the Board as true and correct, that her husband only called her once to ask her to repay the debt for him, without administering any threats.  No other persons called her in respect of her husband’s loan; and she did not know any other matter about the loan.  In other words, there was no threats or violence from the creditor of her husband.  The applicant actually clarified that the only risk of harm she apprehended was from the creditor of her husband.  It was clear from the applicant’s evidence that she had never encountered any violence, intimidation or harassment by her husband’s creditor.

23.  Thus, the Board found no ground for believing that the applicant would suffer severe ill-treatment or serious harm from her husband’s creditor upon refoulement.  The applicant did not face a real risk of torture, ill-treatment, arbitrary deprivation of life or persecution.

24.  Moreover, the Board found that effective state protection was available for the applicant. The applicant, in her prime with nine years’ education and many years of work experience as a domestic helper, would have no difficulty in securing a reasonable job in different parts of Indonesia.  Even assuming that the creditor persisted to locate her after she had relocated to other parts of her country, it was against common sense to suggest that he would be able to find her in such a large country with such a huge population.  Thus, reasonable and safe internal relocation was possible.

25.  The assessment of evidence and risk of harm was primarily within the realm of the Board.  The Board was entitled to make its own decision.  This court finds nothing wrong or unreasonable in the way the Board reached its decision. 

26.  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 errors 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.

27.  Thus, there is no merits in the Leave Application at all.

28.  Moreover, as the applicant had confirmed by way of both her affirmation dated 30 May 2025 and her letter dated 13 June 2025 that she wanted to cancel or withdraw her non-refoulement claims including judicial review, it is clear that she no longer seeks non-refoulement protection and the Leave Application serves no practical purpose.

29.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the intended judicial review has no realistic prospects of success at all, and hence the Leave Application must be dismissed.

Conclusion

30.  For reasons aforesaid, the application to withdraw the Leave Application is refused and 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