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

HCAL 2422/2019

[2025] HKCFI 479

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2422 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 21 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 12 July 2019 (“Board's Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 23 July 2018 (“Director's Decision”) rejecting the applicant’s non-refoulement claim.

2.In Form 86, the applicant named both the Board and the Director as the proposed respondents and the proposed interested parties. 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 arrived in Hong Kong on 18 June 2013 to work as a domestic helper. When the applicant’s contract was prematurely terminated, she was permitted to remain in Hong Kong until 10 October 2013. She instead overstayed and was arrested by police on 29 August 2016. The applicant was sentenced to 2 months’ imprisonment on 9 December 2016 for breach of a condition of stay. On 20 December 2016, the applicant submitted a non-refoulement claim, which was considered under all applicable grounds - 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 husband.

6.The applicant averred that she married in 2012 through an arranged marriage. Her husband was an alcoholic, indulged in games, and gambling. The husband hardly worked and had no money. He always beat up the applicant and threated to kill her with a knife. Since the husband did not work, both of them resorted to borrowing. The applicant had an outstanding loan of 100 million Indonesian Rupiah. The applicant therefore decided to depart Indonesia.

7.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, the perceived harm was not imminent or substantial, and the government was not involved or provided any form of encouragement to the husband’s ill-treatment. 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.

8.On 14 February 2019, the applicant gave evidence in a hearing before the Board. At the hearing, the applicant answered questions the Board put to her for clarification The Board found that the applicant was a woman who was very adaptable and versatile and could adapt to different environments and survive well. In the Board’s Decision, the Board found that the evidence did not show that the applicant would be arbitrarily deprived of her life by her husband, and there was no involvement of government officials or members acting in an official capacity against the applicant. The Board found that the applicant failed to establish that she would be at risk of real harm from her husband if she were returned to Indonesia. In any event, after referring to COI, the Board found that reasonable state protection and internal relocation was available to the applicant. The Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

9.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

10.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 would like to reject and review the decision on my non-refoulement case…they disregard my dangerous situation” and exhibited the Board’s Decision. 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 submitted that her assertions were true and that she was not ready to leave Hong Kong. Her situation has not changed. Since the applicant was acting in person, this court asked her what mistake or error she believed the Board had made. She was unable to identify any. 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.

11.The Board’s Decision was arrived at after examining the applicant’s evidence in detail. The Board’s findings of facts were based on all the evidence placed before the Board. The court in a judicial review will not interfere with the Board’s findings of fact.

12.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 that the applicant failed to discharge her burden of proving the asserted fears and risks.

13.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.

Orders

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

15.The Leave Application be dismissed.

Dated the 4^th day 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