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

HCAL 2308/2023

[2025] HKCFI 562

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2308 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 To:

1.  Application to withdraw the application for leave to apply for Judicial Review (“Form 86”) be refused; and

2.  Application for leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 21 December 2023 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / non-Refoulement Claims Petition Office (the “Board”) dated 9 February 2023 (the “Decision”) refusing her appeal against the decision of the Director of Immigration (the “Director”) in her Notice of Decision dated 30 September 2022 (the “Notice”) refusing her application for non-refoulement protection. Her application was heard on 15 January 2025.

2.Two days after the hearing, she filed an affirmation seeking to withdraw her leave application (the “withdrawal application”) on the ground that her problem in her home country was “finished” and she is free to return. On the basis of the information in her affirmation, the Court could not be satisfied that her decision to withdraw the leave application was freely made with knowledge of the consequence. The Court did not consider it appropriate to allow the withdrawal. In any event, as the leave application had been heard and the Court had reached a decision, the Court considered it more appropriate to continue processing the leave application than to start a train of inquiries to satisfy itself that the withdrawal application was freely made.

3.The Applicant is an Indonesian national, now 40 years of age. She started working as a foreign domestic helper in Singapore in 2008. She married her ex-husband in 2010 after knowing him briefly. Soon after the marriage, she became pregnant. She discovered she could not stand her ex-husband as he did not work. After giving birth to her daughter in 2011, she went back to work in Singapore leaving her daughter to the care of her mother.

4.In 2018, she learned that her ex-husband had a girlfriend. She and her ex-husband agreed to have a divorce. Her ex-husband complained that the HK$2,000 she sent home every month was not enough. He demanded the Applicant to send him more and threatened to kill her and her daughter if she did not comply. Then, the Applicant started sending him HK$3,000.

5.In mid-2019, her ex-husband asked for money to purchase a motorcycle to drive their daughter to school. The Applicant refused and stopped sending him any money altogether. To cut off contact with him, she changed her telephone number and blocked him on social media.

6.In 2020, the Applicant’s mother told her that the ex-husband took their daughter to be looked after by his own parents. Thereafter, the Applicant ceased contact with her daughter.

7.In the same year, the Applicant’s mother asked the Applicant over the phone to send her 10 million Indonesian Rupiah. The Applicant refused. Three days later, her mother called again and proposed that the Applicant should marry the son of a man to whom her mother owed money. Her mother threatened to kill her when she returned to Indonesia, if she refused. The Applicant hung up and changed her telephone number to stop contact with her mother.

8.In 2021, the Applicant legally divorced her ex-husband by mutual consent with the ex-husband paying the legal fees.

The finding of the Board

9.The Applicant testified before the Board. The Board found her chronological account of the key events confusing. The Applicant said she ceased contact with her ex-husband in 2019. When asked to explain how she could have divorced him by mutual consent in 2021, she explained the inconsistency with further inconsistencies. She said she obtained the consent in 2019 before she ceased contact with him. She added that it was her mother who told her ex-husband to pay the legal fees. That explanation is inconsistent with her earlier evidence that she ceased contact with her mother in 2020 and her previous assertion in her non-refoulement claim form (“NCF”) that she had no contact with her family in Indonesia. She then tried to explain the inconsistency by saying that she remained in touch with her mother’s niece.

10.The Board found it difficult to accept that the Applicant paid her ex-husband HK$3,000 a month out of fear for her daughter’s safety, but stopped the payment and cut off contact with him altogether in 2019. The Applicant explained that her action was prompted by her ex-husband’s demand for the motorcycle which had not been mentioned in the NCF and also because she wanted to force him to work. The Board found the second part of her answer difficult to understand as her ex-husband had never worked for nine years since their marriage. The Board also found her action inconsistent with her claim that she and her daughter were under imminent threat of harm from her ex-husband for not sending him money. It found the Applicant knew her ex-husband’s threat was an empty one which he had no intention ever to carry out. This is also confirmed by her evidence that he had made no further threat thereafter. The Board found it unlikely that the ex-husband would hurt the Applicant or their daughter.

11.The Board found the Applicant’s account of her mother’s threat inherently improbable. Her mother’s creditor and his son had never known the Applicant who had been working abroad for ten years. At the time the Applicant was a married woman who was not yet divorced and had a nine year old daughter. Even the Applicant could not explain why the creditor’s son would want to marry her at the price of waiving her mother’s loan. The Board did not accept that the Applicant was in genuine fear that the mother would execute the death threat.

12.The Board also mentioned other minor reasons in support of the above conclusions which need not be quoted here. Applying the law applicable to non-refoulement protection to the facts found by the Board, the Board found the Applicant is not entitled to protection under any of the four applicable grounds under the USM. Hence, it dismissed the Applicant’s appeal.

The legal principles applicable to judicial review

13.The function 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[1].

Grounds for judicial review

14.The Applicant did not put forward any grounds of application for judicial review in her Form 86. In her supporting affirmation, she repeated that her life would be in danger if she returned to her home country. After the legal principles in the preceding section had been explained to her, she confirmed that she had no complaint about error of law, procedural unfairness or irrationality and left it to the Court to look for such vitiating elements in the Decision for her. She reiterated that her problem in Indonesia is not yet solve and it is unsafe for her to return. In effect, she is seeking to challenge the Board’s finding of fact that she had failed to prove that she would face real harm or real risk of harm if returned to her home country. For reasons as explained in the preceding paragraph, this is not permissible in an application for judicial review. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

Discussion and conclusion

15.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board analysed the evidence properly, tested it against common sense and inherent probability and gave reasons for its finding. It found the Applicant incredible, that her fear was unfounded and that she will not face any genuine and substantial risk of being harmed by her ex-husband and mother on her return to Indonesia. It was on that basis that the Board found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. For the above reasons, the Applicant’s leave application is refused.

Dated the 6^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