Dwi Maya Sari v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1065/2023

[2025] HKCFI 431

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1065 of 2023

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.

3. The Leave Application be dismissed.

Introduction

1.By prescribed Form 86 filed on 30 June 2023, 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/adjudicator of the Non-Refoulement Claims Petition Office ("Board") dated 9 March 2023 (" Board's Decision") dismissing the applicant's appeal against the decision of the Director of Immigration ("Director") dated 28 July 2022 (" Director's Decision") rejecting the applicant's non-refoulement claim.

2.In Form 86, the applicant named the Board as the proposed interested party without naming the Director. As the Director should have been the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.

Background

3.The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.

4.The applicant is a national of Indonesia and a lesbian. She came to Hong Kong on 9 December 2019 as a foreign domestic helper. Upon the pre-mature ending of her employment contract, the applicant was required to leave on 26 January 2021. However, she did not depart and overstayed, On 11 May 2022, the applicant was arrested by the Immigration Department for overstaying. On 23 May 2022 and 9 June 2022, she lodged a non-refoulement claim, covering all applicable grounds of torture risks[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on a fear of being harmed or killed by her brother due to her sexual orientation.

5.The Director decided against the applicant’s claim on all applicable grounds. The Director found that there were no substantial grounds for believing that there would be any real risk of her being harmed by her brother. The Director was also satisfied that both state protection and the option of internal relocation were viable. Hence, the applicant’s appeal to the Board.

6.The applicant attended a hearing on 16 December 2022. The Board did not consider the applicant faced a real risk of harm from her brother. It further concluded that there was reasonable and viable internal relocation available to the applicant. The Board rejected the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

7.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

8.Order 53 r 4(1) of the Rules of the High Court requires an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made. The deadline for the issuing of the application would have been 8 June 2023. This Leave Application is 3 weeks out of time.

9.In Form 86, the applicant did not set out any grounds in support of the Leave Application or provide any explanation for the 3-weeks’ delay. In her supporting affirmation of the same date, the applicant only exhibited the Board’s Decision and deposed that her life would be in danger if she were re-fouled. The applicant has failed to identify any arguable error of law by the Board, any relevant matter that he had failed to consider or any other reason why the Board’s Decision was wrong.

10.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 the four grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. In the absence of any specific grounds in support of the Leave Application, I find that it was perfectly open to the Board to come to its conclusion that the applicant had failed to discharge his burden of proving the asserted fears and risks.

11.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.

12.In the absence of any explanation for the delay, this court will also be disinclined to grant leave for her to issue the Leave Application out of time. The Leave Application is accordingly dismissed.

Withdrawal of Leave Application

13.On 29 November 2024, the applicant filed an affirmation to apply 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.

17.The Leave Application be dismissed.

Dated the 27^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