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

HCAL 629/2023

[2025] HKCFI 1380

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 629 of 2023

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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

Order by Deputy High Court Judge Reuden Lai:

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.This is an application by Madam Sulalah (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 13 January 2023 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 10 March 2022 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the Claim

2.The Applicant is an Indonesian. She was born on 27 May 1975 in East Java, Indonesia. She received about 12 years of education and had around 20 years of work experience.

3.The Applicant claimed that her husband (“Husband”) and his creditor (“Creditor”) in Indonesia would harm or kill her because of an outstanding debt of Husband.

4.The Applicant first came to Hong Kong to work as a foreign domestic helper in around 2000. She married Husband in 2004 and came back to Hong Kong to work shortly after. She last arrived in Hong Kong on 5 July 2019.

5.In around September 2019, the Applicant learnt from her sister-in-law that Husband borrowed a large sum of money from the Creditor on 1 August 2019 (“Loan”). Husband gambled the money away and even sold two of the Applicant’s cars. The Applicant called Husband to ask about the Loan and he denied getting a loan. However, Husband asked her to bring money when she came back to Indonesia or he would kill her. This was the last contact between the Applicant and Husband.

6.The Applicant also learnt from her mother-in-law that the Creditor had come to the Applicant’s house once a week and threatened to kill the Applicant if she did not pay back the Loan. She also received threatening calls from the Creditor about 10 times a day in 2019. She believed it was because Husband fabricated her signature on the Loan documents.

7.The Applicant claimed that in the past, Husband had borrowed money many times and she gave him money to repay those loans. Husband had attacked her on one occasion with a burning cigarette.

8.The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

9.By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

10.On 28 April 2023, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed her supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Director and the Board as the proposed respondents.

Legal principles applicable to judicial review

11.In a judicial review, the court does not step into the shoes of the decision makers.

12.In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“ The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI [i.e. country of origin information] materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

13.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

14.The Applicant filed the Form 86 on 28 April 2023.

15.Order 53 rule 4(1) of the Rules of the High Court provides that:

“ An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

16.The Board’s Decision was issued on 13 January 2023. As such, the Applicant should have filed the Form 86 latest on 13 April 2023. The Form 86 was filed on 28 April 2023. It was late.

17.The Applicant was late by about 2 weeks in filing the Form 86. This may not be a very substantial delay but no explanation had been provided in the Form 86 or the Supporting Affirmation for the late filing of the Form 86. The Applicant also had not made any application for time extension to file the Form 86.

18.The Applicant attended the court hearing of 6 March 2025 (“Court Hearing”) and explained that she did not check her letterbox everyday and thus received the Board’s Decision late. She did not understand English and did not know the time limit for applying for judicial review.

19.I do not accept the aforesaid explanation of the Applicant as satisfactory explanation for her late filing of the Form 86. As such, this application is liable for dismissal on the ground of delay. For the sake of good order and completeness, I shall also consider the merits of the Applicant’s application before deciding on how to dispose of the matter.

20.In the Form 86, the Applicant did not put forward any ground for her intended judicial review.

21.In the Supporting Affirmation, the Applicant exhibited the Board’s Decision but did not put forward any ground for her intended judicial review.

22.The Applicant testified at the hearing before the Board. For reasons set out in §§14-59 of the Board’s Decision, the Board did not accept that the Applicant or Husband borrowed any money or had any outstanding debts, or that she was ever threatened or harmed by Husband or the Creditor.

23.The Board found her testimony to be inconsistent with her statements to the Director. The Board was of the view that the Applicant was making up the story as she went along in an attempt to answer the question and she had manufactured the entire claim in an attempt to invent a story to prolong her stay in Hong Kong (§§33 and 59 of the Board’s Decision). The Board found the Applicant’s evidence to be incredible and unreliable and did not accept her claim that she faced risks of harm from either Husband or the Creditor (§§60-61 of the Board’s Decision). The Board further found that internal relocation would be viable to the Applicant (§§63-68 of the Board’s Decision).

24.At the Court Hearing, the Applicant was unable to identify any error of law, procedural unfairness or irrationality in the Board’s Decision.

25.As pointed out in the Nupur Mst case (supra), assessment of evidence, country of origin information materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board. The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.

26.No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way the Board’s Decision was unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

27.Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM for seeking non-refoulement protection; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

28.In §§69-85 of the Board’s Decision, the Board assessed the Claim under each of the applicable grounds under the USM. The Board found that there were no substantial grounds for believing that the Applicant would be in danger of being subjected to the torture risk or the BOR 3 risk if she returned to Indonesia. The Board did not accept that the Applicant had a well-founded fear of the persecution risk. The Board also found that there were no substantial or strong grounds for believing that the Applicant would face a real risk or a genuine and substantial risk of being subjected to the BOR 2 risk.

29.It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

30.The Form 86 was filed out of time without leave of the court nor with satisfactory explanation for the late filing. Having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

Dated the 3^rd day of April 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