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

HCAL 2741/2019

[2025] HKCFI 2750

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2741 of 2019

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.

Observations for the Applicant:

Introduction

1.This is an application by Madam Winarti (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 30 August 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 27 December 2018 (“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 10 March 1972 in Kabupaten Magetan, Indonesia. She received about 9 years of education and had about 9 years of work experience.

3.The Applicant claimed that the villagers in her home village in Indonesia (“the Villagers”) and her family would harm her for being a Christian. She claimed that she was raised as a Muslim but she converted to Christianity while working in Hong Kong.

4.The Applicant claimed that there were about 1,000 members in her home village. She did not have any enmity with them in the past but she was afraid that they would turn against her because she converted to Christianity. The Applicant claimed it would not be safe for her to go back to Indonesia.

5.The Applicant had worked as a foreign domestic helper in Hong Kong between 2000 and 2007. She re-entered Hong Kong as a visitor on 26 December 2007 and was permitted to stay for 1 day in Hong Kong. She overstayed and surrendered to the Immigration Department on 19 October 2015.

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

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

(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” and ”BOR 2”);

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

7.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.

8.On 18 September 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 did not name any proposed respondent. She named the Board as the interested party in the Form 86 and exhibited the Board’s Decision to the Supporting Affirmation. She attended the court hearing of 27 May 2025 (“Court Hearing”) and confirmed that she intended to apply for leave for judicial review of the Board’s Decision. I proceeded with her application on such basis.

Legal principles applicable to judicial review

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

10.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.”

11.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

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

13.In the Supporting Affirmation, the Applicant claimed that her family had no respect for her and wanted to kill her because she converted to Christianity.

14.In §§9-12 of the Board’s Decision, the Board set out and analyzed the evidence given by the Applicant at different stages of her non-refoulement claim proceedings.

15.In the hearing of the Appeal before the Board, the Board asked the Applicant several questions about how she became a Christian but she only gave vague responses. The Board therefore did not accept that she had converted to Christianity. The Board also noted that the Applicant’s evidence concerning when she last took up employment in Hong Kong contradicted with the records held by the Immigration Department. (§12 of the Board’s Decision)

16.In §§13-16 of the Board’s Decision, the Board analyzed the fears claimed by the Applicant. The Board found her evidence on threats from her brother recent fabrication to strength her case.

17.The Board set out in §§17-19 of the Board’s Decision, further matters leading to the Board’s finding that the Applicant’s evidence on her conversion to Christianity was not believable.

18.The Board found that the Applicant had failed to establish the primary facts of her claim. The Board assessed that the chance for her being harmed or killed by her family or the Villagers was low.

19.After considering the relevant country of origin information (“COI”), the Board agreed with the Director that reasonable state protection was available to the Applicant.

20.The Board was of the view that even if the alleged risks of harm from the Applicant’s family and the Villagers were accepted to be true, as an able-bodied adult with overseas work experience, it would not be unduly harsh to expect her to relocate to other parts of Indonesia, such as Jakarta, Bandung or Surabaya.

21.As pointed out in the Nupur Mst case (supra), assessment of evidence, COI 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.

22.In maintaining in the Supporting Affirmation that it was still danger for her to return to Indonesia, the Applicant sought to challenge the findings of fact of the Board on her credibility, evidence, risk of harm, state protection and viability of internal relocation. This 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. In the Court Hearing, the Applicant also confirmed that she did not identify any error of law, procedural unfairness or irrationality in the Board’s Decision.

23.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.

24.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 for seeking non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

25.In §§26-43 of the Board’s Decision, the Board considered the Claim under each of the applicable grounds under the USM. The Board found that even if the Applicant’s evidence on conversion was accepted, there was no evidence on possible risk of torture. There was also no evidence of state acquiescence to or involvement in the threatened violence against the Applicant. The Board found that the Applicant had not proved with acceptable evidence that there was substantial ground for believing that there was danger for her to be subjected to torture as defined under the Ordinance.

26.The Board had rejected the Applicant’s account of events on conversion and her fear for mistreatment from the Villagers. The Board found that the Applicant had failed to prove her claim under BOR 3 and even if her evidence was accepted, the mistreatment complained by the Applicant did not attain a minimum degree of severity.

27.The Board also found that the Applicant failed to substantiate, even to a low standard of proof, that there was a foreseeable real and personal risk of her being deprived of her life and the government would not and could not give her any protection. There was also no evidence to show that the Applicant would face a situation of sentence to death or crime of genocide. The Board found that the Applicant had failed to prove that her absolute and non-derogable rights under BOR 2 would be violated upon her return to Indonesia.

28.The Board had found that her evidence on her conversion to Christianity was not acceptable. Thus, the Board found that she had also failed to prove there was well‑founded fear for the persecution risk. Even if her evidence was accepted, state protection was available to her.

29.The Board also found that internal relocation was viable for the Applicant. (§§44-49 of the Board’s Decision)

30.It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection. These were findings of fact 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 for the Claim. 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

31.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 27^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