Murjiana v. Torture Claims Appeal Board

HCAL 110/2020

[2025] HKCFI 2643

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 110 OF 2020

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 in open court;

Order by Deputy High Court Judge Michael WONG:

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

2.   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 10 January 2020, 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 31 December 2019 (“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/2020/HCAL000110_2020_files/the_Board's_Decision.pdf

2.The Board found the applicant unable to establish a real risk pertinent to any of the applicable grounds under the Unified Screening Mechanism (“the USM”) and confirmed the decision of the Director of Immigration (“the Director”) dated 21 May 2019, which rejected the applicant’s non-refoulement claim.

Amendments

3.In Form 86, apart from the Board, the applicant also named the Non-Refoulement Claims Petition Office and the Director as the proposed respondents, when only the Board should be so named.  The applicant also wrongly named the Board and the Non-refoulement Claims Petition Office as the proposed interested party, when the Director should be so named.

4.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board, and should not be named as a putative respondent or putative interested party at all.

5.Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

6.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.

7.In sum, the applicant claimed for non-refoulement protection because she feared being harmed or killed by a man named Ernanto upon her return to Indonesia because she refused to marry Ernanto as arranged by her father.  The applicant also claimed that she learnt from her father that Ernanto had threatened to make her parade in the village naked and then kill her upon her return to Indonesia.

Grounds for judicial review

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

9.The applicant did not advance any specific ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 10 January 2020.  She merely stated in her affirmation that she would like to request for an oral hearing for the Leave Application with the assistance of legal representative and a Nepali interpreter.

10.The request for assistance of legal representative is not a ground of appeal.  It is for the applicant to seek legal assistance if she needs it.

11.The applicant is an Indonesian and speaks Indonesian language.  There was no justification for her to seek assistance from a Nepali interpreter at all.  As stated in paragraph 13 below, the applicant confirmed that she required an Indonesian interpreter instead.

Oral hearing

12.The applicant requested for an oral hearing for her Application and her case was heard on 13 March 2025.

13.An Indonesian interpreter was arranged to assist at the hearing as the applicant confirmed before the hearing that she required an Indonesian interpreter instead of a Nepali interpreter, which was what she stated in her affirmation dated 10 January 2020.

14.The applicant maintained at the oral hearing that she would face the danger from Ernanto as he threatened to kill her when she returns.  She further said that she had not contacted her family since 2013.

15.After the oral hearing, the applicant applied for legal aid on the same day, ie 13 March 2025, and hence the proceedings were stayed pending the outcome of the legal aid application.  The applicant was refused legal aid on 16 May 2025 and hence the proceedings were resumed.

Discussion

16.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).

17.Without the applicant raising any specific ground, it is difficult for this court to entertain the Leave Application. However, for the sake of completeness, this court will proceed to examine and scrutinize the Board’s Decision for any error of law, procedural unfairness, and irregularities.

18.In assessing the appeal by the applicant, the Board held an oral hearing on 24 October 2019.  The applicant was present and was given the chance to present her case and grounds of appeal to the Board in person.

19.The Board found that the matter between her and Ernanto was private in nature.  The Board considered that there was no evidence to suggest that Ernanto was a criminal or gangster, and that the verbal threat that he made was likely to be an expression out of momentary anger when the applicant had repeatedly declined his marriage proposal.  Moreover, Ernanto assisted the applicant’s family for a period of six years in the hope that she would change her mind, which indicated to the Board that he was inclined to adopt a soft approach in winning her agreement instead of taking actions to humiliate or even kill her if his request was not satisfied.  Since the applicant had left her country for 12 years and not heard from Ernanto for six years at the time when the Board heard her case, the Board found it doubtful if Ernanto still wanted to marry a woman whom he had not seen for 12 years.    

20.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 considered that the applicant should be able to obtain assistance from the police and effective state protection was available to the applicant.  

21.Further, as an able-bodied person with nine years’ education and six years’ work experience as a domestic helper in Hong Kong, the applicant could safely relocate to other places within Indonesia without undue hardship, even if Ernanto persisted to look for her upon her return to Indonesia.  Thus, the Board found that reasonable and safe internal relocation was possible.

22.After due consideration of the law and the evidence as presented by the applicant, the Board concluded that the applicant failed to establish any harm, risk of violation to her right of life, risk of torture and risk of persecution, and that she was not entitled to non-refoulement protection on any of the aforesaid applicable grounds.

23.The finding of facts was solely within the ambit of the Board.  This court finds nothing wrong in the way the Board reached its conclusion based on the evidence available to the Board.

24.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.

25.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

26.For reasons aforesaid, the Leave Application is dismissed.

Dated the 24^thday 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