Riswanti v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 2534/2019 on BabelCite. This High Court CFI judgment was delivered on 27 March 2025.
1. This is an application by Madam Riswanti (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 16 August 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 11 June 2019 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).
Cites 9 cases
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HCAL 2534/2019 [2025] HKCFI 1244 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2534 of 2019
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge Reuden Lai: Leave to apply for Judicial Review be refused. Observations for the Applicant: Introduction 1.This is an application by Madam Riswanti (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 16 August 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 11 June 2019 (“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 3 January 1982 in Jawa Tengah, Indonesia. She had around 9 years of education and around 8 years of working experience as domestic helper. 3.The Applicant claimed that she always suffered bad treatment and violence from her husband (“Husband”). 4.Husband attacked her with a knife in 2013 during an argument over the extramarital affair of Husband. The Applicant reported to the police but was asked to “mediate” with Husband. 5.The Applicant claimed that she began an affair with a Pakistani man in Hong Kong in 2018. Husband discovered her extramarital affair and threatened to kill her if she returned to Indonesia. 6.The Applicant claimed that the situation had deteriorated further because she had stopped sending money back to Indonesia. Husband had constantly made threats to her over the phone and via SMS. Husband also reported her infidelity to the police and to an Islamic organization. She claimed that she was warned by someone claimed to be from that Islamic organization that she would be whipped in accordance with Islamic law if she was found to have committed adultery. 7.The Applicant claimed that if she returned to Indonesia, she would be harmed or killed by Husband and was at risk of being punished under Sharia law for having an extramarital affair. 8.The Applicant last arrived in Hong Kong on 1 August 2018 for employment as foreign domestic helper. Her employment contract was terminated on 6 January 2019. She was required to leave Hong Kong within 2 weeks of termination of her employment. She did not leave and overstayed in Hong Kong since 21 January 2019. She surrendered to the Immigration Department on 22 February 2019. She lodged the Claim on 27 March 2019. 9.The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”), namely:
10.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. 11.On 30 August 2019, 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 Board as the proposed respondent and the Director as the interested party. Legal principles applicable to judicial review 12.In a judicial review, the court does not step into the shoes of the decision makers. 13.In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:
14.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 15.In the Form 86, the Applicant raised the following grounds for the intended judicial review:
16.In the Supporting Affirmation, the Applicant only exhibited the Board’s Decision but no other supporting documents. She also did not state any grounds for her intended judicial review in the Supporting Affirmation. 17.In the Form 86, the Applicant raised various complaints against the Director. As this is an application for leave for judicial review of the Board’s Decision (not the DOI Decision) and the hearing of the Appeal before the Board was de novo, errors (if any) made by the Director in the DOI Decision will not constitute grounds for judicial review of the Board’s Decision. 18.The Applicant complained in the Form 86 that the Board had failed to give her sufficient time and chance to arrange for evidence for the Claim and the Appeal. 19.The Appeal was determined by the Board without a hearing pursuant to Section 12 of Schedule 1A of the Ordinance and paragraph 15 of the Practice and Procedure Guide of the Administrative Non-refoulement Claims Petition Scheme. The Board recorded in §7 of the Board’s Decision that: “The [Applicant] wrote twice to the Board asking for her appeal to be decided on the papers without an oral hearing. After the Board was satisfied that it was indeed the [Applicant’s] wish for her appeal to be decided on the papers without an oral hearing, it notified her that a Board Member would proceed to assess and consider her appeal without an oral hearing.” 20.If the Applicant had not arranged for all her supporting documents, she would not have written twice to the Board asking the Board to determine the Appeal on papers without an oral hearing. 21.The Applicant had attended the court hearing of 11 February 2025 and said that this was not her case. She said that the grounds referred to in the Form 86 were not written by her. They were written by her former solicitors and did not reflect her case. She said that her case was that she was threatened by Husband. However, she was unable to identify any error of law, procedural unfairness or irrationality in the Board’s Decision. 22.The Applicant had elected to have the Appeal determined solely on papers. The Board examined the aspects of internal and external consistency of the Applicant’s case based on her individual profile as presented to the Board. The Board considered with care and anxious scrutiny all evidence adduced before it. 23.The Board found that there was no reliable evidence that the police, government and/or state and/or other authorities in Indonesia had acquiesced in the alleged ill-treatment of the Applicant. There was no evidence that the alleged ill-treatment or threats of ill-treatment were done with an intention listed in the definition of “torture” in section 37U of the Ordinance or with an intention related to the interest/policies of Indonesia. (§§48-51 of the Board’s Decision) 24.There was no sufficiently reliable evidence to show that the state or government of Indonesia was unwilling or unable to afford protection to the Applicant. (§§52-54 of the Board’s Decision) 25.The Board found that internal relocation to Bali or another city would be viable to the Applicant. Even if the Applicant’s assertions about domestic violence, and telephone threats from some Islamic organization were accepted, it was unlikely that the Applicant would suffer any persecution risk in future if she relocated to another place in Indonesia. (§§45-47 of the Board’s Decision) 26.The Board found that the Applicant failed to prove a well-founded fear of being subject to any of the proscribed risks of harm upon her return (§55 of the Board’s Decision). 27.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. 28.In disputing the Board’s assessment on evidence and risk of harm, the Applicant sought to challenge the findings of fact of the Board which is not permissible in a judicial review unless in making such findings there were errors of law or procedural unfairness or irrationality. I find none in this case. 29.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 relevant 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. 30.In §§57-63 of the Board’s Decision, the Board considered the Claim under each of the applicable grounds under the USM. The Board found that there were no substantial grounds to believe that the Applicant faced a real risk of being subjected to torture referred to in section 37U(1) of the Ordinance or the BOR 3 risk. The Board did not accept that the Applicant had a well-founded fear of persecution for any of the reasons referred to in Article 33 of the Refugees Convention. The Board also found that there were no substantial grounds for believing that the Applicant faced the BOR 2 risk if refouled to Indonesia. 31.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 32.In the premise and 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 27th day of March 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
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Cases cited in this judgment
Further hearings and rulings under HCAL 2534/2019