MARYUNI v. TORTURE CLAIMS APPEAL BOARD

HCAL 3406/2019

[2025] HKCFI 4155

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3406 OF 2019

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 oral submissions by the applicant 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 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 18 November 2019, 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 1 November 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/2019/HCAL003406_2019_files/the_Board's_Decision.pdf

2.  The Board decided that the applicant’ claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 7 May 2018 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.

3.  Both the Board’s Decision and the Director’s Decision were dealing with the applicant’s BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3], but Torture Risk[4] was not assessed.

4.  The applicant had previously made a torture claim, which was rejected by the Director on 26 June 2013. The applicant did not appeal against that decision. Thus, the applicant’s Torture Risk had already been assessed and finally determined, and it was not necessary for the Board to deal with it again in the Board’s Decision.

Amendments

5.  In Form 86, the applicant named both the Board and Immigration Department as both the putative respondents and the putative interested parties, when only the Board should be named as the putative respondent and only the Director should be named as the putative interested party.

6.  This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

The applicant’s case

7.  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.

8.  In sum, the applicant claimed for non-refoulement protection because she feared harm or being killed by her father and her ex-boyfriend, Doni, as she had given birth to her daughter in Hong Kong with a Hindu man out of wedlock. She also feared that her family members would not accept her if she were to return to Indonesia.

Oral hearing

9.  The applicant requested for an oral hearing of the Leave Application, and her case was heard on 3 July 2025.

10.  The applicant said that she wanted to look after her daughter in Hong Kong and hence she could not return to Indonesia. Her daughter, who is 16 years old now, was born in Hong Kong and has right of abode here. The daughter’s father is a Hong Kong resident, but the applicant is not married to him and they had separated.

11.  This court explained to her that the fact she has a daughter here in Hong Kong did not mean that she could challenge the Board’s Decision, which was made in respect of her non-refoulement claim.

12.  The applicant then said that she needed to take medication everyday for the rest of her life because of high cholesterol level and high blood pressure.

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 her intended judicial review in Form 86, nor in her supporting affirmation dated 18 November 2019. She merely stated in the affirmation that the Board disregarded her dangerous situation.

15.  At the oral hearing, she only mentioned that she needed to stay in Hong Kong to take care of her daughter and that she was on continuous medication for high cholesterol level and high blood pressure.

Discussion

16.  First of all, the medical issues of the applicant as raised by her at the oral hearing were not placed before the Board for consideration. As held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090), the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.

17.  Further, her health issues were common illnesses and general health issue was not a ground for non-refoulement claim under the USM.

18.  The applicant also mentioned that she could not return to her home country as she needed to take care of her daughter who is a Hong Kong resident. As held by the Court of Final Appeal in Comilang & Ors v the Director of Immigration [2019] HKCFA 10, family unity rights were not a bar to refoulement of foreign nationals without a right of abode, even when they have a spouse and children who are permanent residents of Hong Kong.

19.  Thus, this ground cannot assist the applicant in the Leave Application either.

20.  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).

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

22.  In assessing the applicant’s appeal/petition, the Board held a hearing on 25 April 2019. The applicant was present at the hearing and was represented by counsel. Thus, the applicant did have a chance to present her case through her counsel to the Board.

23.  The Board questioned the applicant for details of her claims but found significant contradictions between her written and oral evidence regarding her relationship with Doni. The Board found the applicant’s evidence in respect of her relationship with Doni to be vague and contradictory. The applicant was inconsistent as to when she started to know Doni and to know him well. The Board also found the applicant’s assertion at the hearing that the intended marriage with Doni was arranged by her father to be unconvincing, especially when the arrangement was said to have been made in 2004, and the father did not act on it in the two years between 2004 and 2006 when the applicant was in Indonesia. The Board did not accept that the applicant was in a relationship with a person named Doni or that there was any arrangement made for them to marry. The Board did not accept that the applicant’s claims regarding the threats Doni made against her were credible.

24.  The Board accepted that the applicant’s father might be infuriated by the information that the applicant was pregnant out of wedlock and might have told her not to return to their village. However, the Board refused to accept that the father continued to threaten her life by calling her two to three times a week for a month until the applicant changed her phone number. The applicant was evasive even to the questions by her counsel as to whether her father made death threats to her in his subsequent calls after he was first informed of her pregnancy. The Board found the applicant’s claim that her father had threatened her with death during the subsequent calls to be unconvincing, and was satisfied that the applicant did not receive such calls from her father.

25.  The applicant had lost contact with both her father and Doni since 2008 after she changed her phone number. The Board found the applicant’s claim that her father would kill her to uphold the honour and reputation of her family purely speculative and unlikely, given the passage of time and her evidence that her father had never harmed or mistreated her in the past. Country of origin information (“COI”) also showed that honour killings were unknown in Indonesia and there was little evidence to show they occurred in the country. The Board noted the information submitted by the applicant’s counsel that women who had children out of wedlock would face familial rejection, but there was no suggestion that they were killed by family members to uphold their reputation or the honour of the family. The Board also did not accept that the applicant’s father’s devoutness in the practice of his religion necessarily equated with him being conservative or extreme such that he would inflict harm on the applicant for what he might consider to be her transgression.

26.  The Board had also taken into account the argument by the applicant’s counsel that the applicant and her daughter might lose or would lose their Indonesian citizenship by reason of operation of Article 23(i) of the law on Citizenship of the Republic of Indonesia. The daughter has a right of abode in Hong Kong. After consideration of the applicant’s evidence in this regard, the Board was not satisfied that the applicant would be considered an alien upon her return, nor would the daughter be considered so if she returned with the applicant. The Board was satisfied that the daughter would be recognized as a citizen of Indonesia as her birth had been registered with the Consular Office of the Consulate General of Republic of Indonesia in Hong Kong SAR and Macau SAR in 2014. The Board found that the applicant’s daughter’s Indonesian citizenship was established. As such, the Board did not accept the contention of the applicant’s counsel that the applicant would not have the option of taking her daughter with her to Indonesia.

27.  The Board further considered but rejected the applicant’s counsel’s contention that she would not be able to obtain an identity card unless she had access to her family registration card kept by her father. The information supplied by the applicant’s counsel was from Wikiprocedure which appeared to be unsourced, and appeared to only apply to Jakarta residents, which the applicant was not. The Board decided to place no weight on this evidence.

28.  The Board also considered the contention of the applicant’s counsel that the applicant’s name had been removed from her family registration card, and that if returned to Indonesia, she would have to get the card amended and that would result in her father becoming aware that she had returned. However, the Board found that it was a pure speculation as the applicant had lost contact with her father since 2008, more than 10 years before the Board’s hearing. There was nothing in the applicant’s evidence to suggest that her name had been removed from her family register.

29.  Further, the Board found against the applicant’s counsel’s contention that a marriage certificate was required to enroll the applicant’s daughter for school in Indonesia. The Board found that independent information indicated a birth certificate was required instead. The Board had before it a copy of the birth certificate of the applicant’s daughter. The Board found that the applicant would be able to enroll her daughter in school in Indonesia, as she intended.

30.  Lastly, the Board considered the applicant’s claims made in her written claim forms regarding the level of violence and crime in Indonesia. The applicant feared that her daughter would be an easy target of criminals and that she herself might be robbed and raped as a “foreigner” because she had not lived in Indonesia for many years. The Board was not satisfied on what were essentially unsupported assertions that there was a real risk of either the applicant or her daughter being victims of criminal or violent incidents if the applicant was repatriated to Indonesia and took her daughter with her.

31.  In view of its findings, the Board did not consider that the applicant would face a real risk of any of the proscribed forms of harm should she return to Indonesia. Thus, the Board concluded that the applicant’s claims for non-refoulement protection were not made out and confirmed the Director’s Decision.

32.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision. The applicant’s alleged dangerous situations had been fully considered but rejected by the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

33.  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.

34.  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 has to be a reasonably arguable claim which enjoys 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

35.  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