Yosefina Dajani v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2415/2019

[2025] HKCFI 478

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2415 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; and

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.By prescribed Form 86 filed on 20 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 15 July 2019 (“Board's Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 19 October 2018 (“Director's Decision”) rejecting the applicant’s non-refoulement claim.

2.In Form 86, the applicant did not name any party as the proposed respondent and stated “NO” 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 24 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 is a national of Indonesia. She last arrived in Hong Kong in 30 May 2007 and was allowed to stay as a domestic helper. Her contract was terminated prematurely, and was subsequently given an extension of time to leave Hong Kong until 10 February 2008. She instead overstayed and was arrested by police on 3 July 2008. On 10 July 2008, the applicant was convicted of an offence for breach of condition of stay and was given a suspended sentence. After the Director had rejected the applicant’s torture claim lodged on 5 August 2008, her petition to the Chief Executive also failed on 27 July 2011.

6.On 17 August 2013, the applicant made a non-refoulement claim by a written representation. The applicant’s claim was considered under all applicable grounds other than 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 (1) the wife of Sutirta who thought that the applicant had an affair with her husband, and (2) the four members of the Democratic Party, who were afraid that the applicant would disclose the secret of the party and how they obtained their power.

7.The applicant is a widow and has 4 children. Since 2004, she joined the Democratic Party. The applicant was one of the candidates for the election for the member of the local parliament in her district. However, the members agreed that all the votes should go to Sutirta who was the first candidate on the list and had agreed to pay for the election expenses. The applicant claimed that she decided to leave Indonesia after a number of incidents. The first incident took place 3 days before the election. In that incident, four unknown men who believed to be the bodyguards of Sutirta’s wife came to her house. They threatened the applicant not to approach Sutirta as the wife believed the applicant had an affair with him. The applicant ignored the threats and continued with her political activities. The second incident took place after the election when two men came to her house on bicycle and assaulted the applicant with umbrellas. Two weeks after this accident, Sutirta and his wife came to the applicant’s house discussing about compensation for the election. When the applicant was doing the calculation for the expenses, Sutirta’s wife struck Sutirta’s head with her high-heel shoes. When the applicant later obtained a job in another town in a boarding house, she was attacked by 4 unknown men who were believed to be related to Sutirta’s wife, who has been actively participating in political activities and a contractor in a joint venture business trading in crop seeds etc. The applicant’s attempt to open a corn seed trading business was unsuccessful as the farmers refused to trade with the applicant. In around June 2006, when the applicant was ready to depart for Singapore to work as a domestic helper, she instead received a letter in the Jakarta airport, instructing her to go to Batam instead of Singapore. The applicant feared that it was Sutirta’s wife wanting to harm her. The applicant ran away and registered with another employment agency to come to Hong Kong instead.

8.In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds other than risk of torture. The Director found that the level of risk and harm was low, the perceived harm was not imminent nor substantial, and the applicant was neither a target of the police nor the government. 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.

9.On 8 May 2019, the applicant attended a hearing before the Board with an interpreter. At the hearing, the applicant confirmed that the claims and evidence were true and correct and replied that there were no additional claims or new information that she wanted to bring to the attention of the Board. While the Board found that the applicant’s account of the past events was detailed and consistent with independent COI, and accepted that it was essentially accurate, it did not accept the Batam incident had anything to do with Sutarti’s wife. The Board also found that her fears as to future risks were not well-founded and entirely speculative. It was found that the applicant was only subjected to minor instances of harm when the issue was still quite fresh, and that there was a very remote prospect of her suffering any serious or significant harm now. As for the threat by the “4 Politicians”, the Board found that the fear was too speculative and without foundation. It also did not believe that she would be facing more than a remote possibility of being subjected to any serious or significant harm at the hands of Sutarta’s wife or any politicians acting at their behest. The Board confirmed the Director’s Decision.

Legal principles applicable to judicial review

10.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

11.The applicant’s Form 86 did not contain any grounds for seeking relief. In her supporting affirmation of the same date, she deposed that, “I can not satisfied (sic) with the [Board’s] Decision about my case, please review my case…” and exhibited the Board’s Decision. There were no evidence or identification of errors in support of the intended challenge. At the hearing, this court had asked her whether she had any grounds she wished to submit in support of the Leave Application. The applicant stated that she was not satisfied with the Board’s Decision. She was still afraid to go home, as her story was true. Apart from repeating that she had not lied about her account, she had nothing further to add. It is plain that the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

12.The Board’s Decision was arrived at after examining the applicant’s evidence in detail. In its assessment, the Board had accepted the applicant’s account of events. However, the Board’s findings that on her future risks and harm as being speculative and remote are findings of fact, which the court in a judicial review will not interfere with.

13.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 fear was speculative and that the applicant failed to discharge her burden of proving the asserted fears and risks.

14.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 676.0

Orders

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

16.The Leave Application be dismissed.

Dated the 4^th day of February 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