Wiwik Indarwati v. Torture Claims Appeal Board

HCAL 99/2024

[2025] HKCFI 2369

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 99 OF 2024

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

Order by Deputy High Court Judge Michael WONG:

1.  On this court’s own motion, the name of the applicant be amended to “Wiwik Indarwati” and the name of the putative interested party be amended to “Director of Immigration”.

2.  The applicant’s application for leave to withdraw the application for leave to apply for judicial review be refused.

3.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 9 January 2024, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board") dated 4 December 2023 (“the Board's Decision”). The Board’s Decision can be viewed in the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL000099_2024_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s claim on all the applicable grounds under the Unified Screening Mechanism (“the USM”) failed. Hence, the Board dismissed the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 23 July 2021, which rejected the applicant’s claim for non-refoulement protection.

Amendments

3.In Form 86, the applicant wrongly named herself as “Wiwik Indarti” when it should be “Wiwik Indarwati”, and also wrongly named the Board and the Non-refoulement Claims Petition Office as the putative interested party when the Director should be so named. This court therefore makes an order on its own motion to amend the name of the applicant to “Wiwik Indarwati” and the name of the putative interested party to “Director of Immigration”.

The applicant’s case

4.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

5.In sum, the applicant claimed for non-refoulement protection because she feared being harmed or killed by a loan shark named Endy if refouled to Indonesia, as she was unable to repay the debt to Endy.

Withdrawal of the Leave Application

6.By her latest affirmation dated and filed on 10 January 2025, the applicant made an ex parte application for leave to withdraw the Leave Application. The applicant stated in the affirmation that she wanted to cancel all her non-refoulement claims including the appeal or judicial review in Hong Kong and there was no need to see her non-refoulement claim case officer.

7.There is no evidence to show that the applicant made the above withdrawal application other than out of her own volition. With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing for the Leave Application. It is therefore not necessary for this court to afford her any oral hearing for the Leave Application even though she had requested one before.

8.However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

9.Thus, it is just not right to leave the action at large by granting leave to withdraw to the applicant. This court will proceed to determine the merits of the Leave Application.

Grounds for judicial review

10.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

11.The applicant failed to identify any ground for the intended judicial review. She merely stated in the supporting affirmation dated 9 January 2024 that she did not want to go back to Indonesia because the loan shark would kill her as she did not have money to repay the debt to the loan shark.

Discussion

12.The role 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. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

13.Thus, despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision as aforesaid.

14.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 17 April 2023. The applicant was present and was given the chance to present her case and grounds of appeal to the Board in person. The Board carefully examined her evidence and questioned the applicant for details.

15.As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning in rejecting the applicant’s claims. The Board found her attitude towards the loans under her name, if really existed, was unreasonable and illogical, as she did not even ask for the details of the loan, in particular the amount of interest or the time the whole loan had to be repaid. Likewise, the Board found the applicant’s evidence in relation to when the arrears arose confused and poor, especially when she could not say for sure whether the outstanding amount of 500 million Indonesian Rupiah occurred before or after the collapse of her father’s business.

16.The Board found that there was no evidence to support her allegation that Endy had connection with the authorities and mafias. Besides, it was the applicant’s account that her father had been assaulted twice by Endy whereas she and her sister had never been assaulted.

17.There was also no evidence to show when and how Endy had looked for her. Hence, the Board found that the applicant’s claim that Endy was still looking for her was a mere assertion. In addition, the applicant stated that her father ran into Endy in late 2021 but Endy did not demand him to make repayment or do anything to him. Endy only told her father that he was looking for the applicant. The Board found her evidence in this respect illogical and unacceptable.

18.It is therefore the Board’s finding that the applicant had not proven there was a real likelihood for the alleged risk to be materialized and the likelihood was considered to be low.  

19.In assessing the availability of state protection and the viability for the applicant’s internal relocation, the Board had referred to the then most updated country of origin information for the applicant’s country from different sources. The Board concluded that the Indonesian government has tried hard to improve the effectiveness of the police, and that state protection was ready and available upon her return to Indonesia.

20.As to internal relocation, it was the applicant’s own evidence that she could move to Bali or Jakarta. The Board concluded that her fear of harm from Endy was localized in her home area. As an able-bodied adult with 13 years of formal education and 11 years of work experience, the applicant could relocate to other parts of Indonesia to further negate the perceived risk of harm.

21.Hence, the Board concluded that the applicant was not entitled to non-refoulement protection under any of the applicable grounds, and also found that state protection was available and internal relocation remained a viable option to the applicant.

22.The finding of facts is within the sole ambit of the Board. This court finds no errors of the Board in reaching its decision based on all the evidence before it. In fact, in view of the applicant’s latest affirmation confirming that she wanted to return to her home country and to cancel her application for non-refoulement protection, it appears that there is no danger for her to return to Indonesia. Hence, there is absolutely no ground for her to make any non-refoulement claim and there is no prospect of success in the applicant’s intended application for judicial review at all.

23.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

24.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 a reasonably arguable claim which enjoyed realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

25.For reasons aforesaid, the application for leave to withdraw the Leave Application is refused and the Leave Application is dismissed.

Dated the 17^th day of June 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