MUJIATI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1489/2024

[2025] HKCFI 3541

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1489 OF 2024

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 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”.

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 2 September 2024, 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 29 August 2024 (“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/2024/HCAL001489_2024_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claim failed on all the applicable grounds including BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3] under the Unified Screening Mechanism (“the USM”).  Hence, the Board rejected the applicant’s petition and confirmed the decision of the Director of Immigration (“the Director”) dated 29 June 2018, which rejected her non-refoulement claim.

3.  The Director had previously assessed and rejected the applicant’s claim based on her Torture Risk[4] on 9 July 2013.  Hence, the applicant’s claim was assessed and determined by the Director and the Board only on the aforesaid three grounds this time.

Amendment

4.  The applicant named both the Board and “Non-Refoulement Claims Petition Office” as the putative respondents in Form 86, when only the Board should be named as the putative respondent. 

5.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”.

6.  This court noticed that the adjudicator, Mr Anthony Yuen, signed the Board’s Decision as “Adjudicator of the Non-refoulement Claims Petition Office” instead of “Member of the Torture Claims Appeal Board”.  This is not a correct description of his capacity, as he was not making the determination on behalf of the Non-refoulement Claims Petition Office.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the members of the Board and does not have the capacity to determine non-refoulement claims itself.

7.  Under the USM, the Chief Executive has delegated his powers under Article 48(13) of the Basic Law to members of the Board to hear and determine petitions in relation to claims made on all applicable grounds other than Torture Risk (see paragraph 3.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme).  Thus, only the members of the Board have the powers to hear and determine the applicant’s petition.

8.  Nevertheless, the wrong description of his capacity does not nullify the Board’s Decision, as Mr Yuen was indeed a member of the Board and did have the power to determine the applicant’s petition.

The applicant’s case

9.  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.

10.  In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, a loan shark named Ujang would harm or kill her as she failed to settle her late father’s debt owed to Ujang and the applicant had agreed to take over the debt.

Withdrawal of the Leave Application

11.  The applicant requested for an oral hearing of the Leave Application, but before a hearing is fixed, the Director sent a letter dated 25 September 2024 to inform this court that the applicant had written a letter dated 20 September 2024 to withdraw the Leave Application.

12.  As stated in the applicant’s said letter, the reason she gave for the withdrawal application was that she wanted to go back to her home country Indonesia as soon as possible, and it was safe for her to go back.

13.  There is no evidence to show that the applicant made the withdrawal application other than out of her own volition.  With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing for the Leave Application.  It is therefore not necessary for this court to afford her any oral hearing for the Leave Application even though she had requested one before.

14.  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.”

15.  Thus, it is right for this court to deal with the Leave Application instead of leaving the action at large by granting leave to the applicant to withdraw.  The applicant’s application to withdraw the Leave Application is therefore refused, and this court will proceed to consider the merits of the Leave Application.

Grounds for judicial review

16.  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).

17.  The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 2 September 2024.  The applicant merely stated in the affirmation that she did not agree with the Board’s Decision.

Discussion

18.  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).

19.  Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any specific ground being advanced by the applicant for the intended judicial review.

20.  In assessing the applicant’s appeal, the Board held an oral hearing on 8 July 2024.  After due consideration of the evidence and the oral testimony of the applicant, the Board concluded that there was nothing in the applicant’s case that could establish BOR 3 Risk, BOR 2 Risk or Persecution Risk.

21.  The Board did not make any express finding on the applicant’s credibility but came to the above conclusion entirely based on the applicant’s alleged case.  The Board found that the kidnap and rape incident happened on the same night when the applicant agreed to take responsibility of her late father’s debt.  Ujang had never threatened to harm or kill the applicant if she did not repay the loan.  Thus, the kidnap and rape had nothing to do with the repayment of the loan.

22.  The applicant had never approached the police or other government authorities for help.  Although incompetence and ineffectiveness of the police was to a certain extent supported by objective country of origin information (“COI”), there was also information that the Indonesian government did take measures to improve the Indonesian police in terms of efficiency and concern for human rights. There were also measures in place to combat corruption.

23.  The Board found no evidence to suggest that Ujang was powerful or resourceful enough to locate the applicant had she moved to stay in places other than her home village.  It would not be unduly harsh for the applicant being a mature adult with around 10 years of work experience, including experience in working overseas, to relocate to other parts of Indonesia to avoid Ujang.  The applicant could also continue to work as a foreign domestic helper overseas to support her living.

24.  Thus, the Board found that internal relocation was a viable option to the applicant to avoid Ujang even if she was to return to Indonesia, and hence rejected the applicant’s petition.

25.  The assessment of evidence, COI materials and risk of harm are primarily within the realm of the Board.  The applicant’s alleged danger in her home country had indeed been duly assessed by the Board.  This court finds no errors of the Board in reaching its decision based on all the evidence before it. 

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.  In fact, in view of the applicant’s latest confirmation that it was safe for her to return to her home country, there is absolutely no ground for her to make any non-refoulement claim and there is no prospect of success in the applicant’s intended application for judicial review at all.

28.  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

29.  For reasons aforesaid, the application for leave 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