Sutris Minawati v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2306/2019

[2025] HKCFI 222

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2306 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Levy:

1.  The Form 86 is amended on the court’s own motion;

2.  Leave to the applicant to withdraw the Leave Application; and

3.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.By prescribed Form 86 filed on 12 August 2019, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“the Board”) dated 1 August 2019 (“Board's Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 6 February 2018 (“Director's Decision”) rejecting the applicant’s non-refoulement claim.

2.In Form 86, the applicant named “USM” as the proposed respondent and “TCAB” as the proposed interested party. As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.

3.As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 12 December 2024. The applicant attended in person.

Background

4.The background as taken from the respective decisions of the Director and the Board referred to above can be briefly stated as follows.

5.The applicant was a national of Indonesia. She first came to Hong Kong to work as a foreign domestic worker in 2010. When her last employment contract was terminated and required to leave on 5 April 2015, she overstayed. On 24 May 2015, she was arrested by police. On 28 May 2015, the applicant was convicted and sentenced to imprisonment of 2 months and 2 weeks for the offences of breach of conditions of stay. On 4 June 2015, the applicant lodged a non-refoulement claim, and the applicant’s case was considered under all applicable grounds - the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on a fear that if refouled, she would be harmed or killed by her paternal uncle for her failure to repay the loan owed by her father.

6.In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds. The Director found that the level of risk and harm was low as the applicant’s problem was solely a private and domestic matter without any suggestion of the involvement of political parties or organizations. After having considered the country of origin information reports (“COI”), the Director was satisfied that state protection was available and that internal relocation alternatives were available and reasonable. Hence, the applicant’s appeal to the Board against the Director’s Decision.

7.On 28 December 2018, the applicant attended a hearing before the Board. The applicant appeared in person with suitable interpretation and adopted her documents as evidence in support of her claim. In the Board’s Decision, the Board found that the applicant’s credibility was difficult to believe. It also found that state protection and internal relocation alternatives were reasonably available.

Legal principles applicable to judicial review

8.As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

9.The applicant’s Form 86 did not contain any grounds for seeking relief. In her supporting affirmation of the same date, she exhibited the Board’s Decision. There were no evidence or identification of errors in support of the intended challenge.

10.The Board’s Decision was arrived after examining the applicant’s evidence in greater detail. The Board’s conclusion that the applicant’s claims were not credible, and in any event, state protection and internal relocation alternatives were available. These are findings of fact, which the court in a judicial review will not interfere with.

11.Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness in the Decisions of the Director and the Board. I find that it was perfectly open to the Board to come to its conclusion that the applicant’s evidence was incredible and that the applicant failed to discharge his burden of proving the asserted fears and risks.

12.For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Withdrawal of Leave Application

13.At the hearing, the applicant informed this court that she wished to go home, and wanted to withdraw the Leave Application. The applicant was therefore asked to confirm her withdrawal under oath. The applicant affirmed that her problem at home was resolved, and that she was applying to withdraw the Leave Application.

14.Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action. In the circumstances, I should grant leave to the applicant to withdraw the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471.

Orders

15.The Form 86 is amended on the court’s own motion;

16.Leave to the applicant to withdraw the Leave Application; and

17.The Leave Application be dismissed.

Dated the 9^th day of January 2025.

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