Warki Nurbaeti Bt Kurdi and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 695/2023

[2025] HKCFI 3341

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 695 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 1st Applicant in open court;

Order by Deputy High Court Judge To:

1.  Extension of time to file the leave application be refused; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s amended application by Form 86 filed on 11 May 2023 for leave to apply for judicial review (the “leave application”) of a decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 13 December 2022 (the “Decision”) dismissing her and her daughter’s appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 9 September 2021 (the “Notice”), refusing their application for non-refoulement protection. 

2.In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed with the remaining two.  Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors.  As the delay in this case is not very substantial, the Court explored the merits of the application for the purpose of determining the application for extension of time as well as the substantial application.

3.The leave application was initially filed by the Applicant for herself and her daughter, ie the 2^nd Applicant.  It was amended pursuant to an Order of this Court dated 1 April 2025 by removing her daughter as a party as she has acquired permanent residence status in Hong Kong and does not require non-refoulement protection.

Background

4.The Applicant is an Indonesian national.  She last entered Hong Kong on 6 April 2018 to work as a foreign domestic helper.  She overstayed since 20 October 2018 after her employment was prematurely terminated.  On 9 December 2020, she surrendered to the Immigration Department and raised a non-refoulement claim on 14 December 2020.  Whilst in Hong Kong, she developed a relation with a Hong Kong resident (“Tang”) and gave birth to a daughter on 11 February 2021, without being married.  She made a non-refoulement claim on her daughter’s behalf by way of written significations dated 25 April and 17 May 2021.  Their non-refoulement claims were assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk^[2]; BOR 3 Risk^[3]; Persecution Risk^[4]; and BOR 2 Risk^[5]. Their application was rejected by the Director’s Notice.  Their appeal was dismissed by the Board’s Decision.  She now applies for leave to apply for judicial review of that Decision.  

The Applicant’s case

5.The following account of the Applicants’ case is based on the information in the non-refoulement claim form prepared by the 1^st Applicant with legal assistance and the record of her screening interview in the presence of her lawyer.  In gist, the Applicants claim that if returned to Indonesia, the 1^st Applicant will be harmed or killed by a loan shark for being unable to settle a loan owed by her father of which she was the guarantor.  Both Applicants also claimed that they would not be accepted or would even be killed by the 1^st Applicant’s family and the community, as the 2^nd Applicant was born out of wedlock and the 1^st Applicant was a single mother with an illegitimate child. 

6.The Applicant, now aged 37, was born in Indramayu, West Java, Indonesia.  She is divorced.  Her widowed father and two siblings are living in Indonesia.  She had nine years’ formal education and had ten years’ experience working as a domestic helper in Dubai, Saudi Arabia, Taiwan and Hong Kong.  

7.She claimed that in February 2018, her father borrowed 100 million Indonesian Rupiah (“IDR”) from a loan shark for treating her mother’s heart disease.  The loan carried a monthly interest of 10 percent of the principal and had to be settled within two years.  The 1^st Applicant signed the loan agreement as guarantor.  From February to October 2018, her father repaid the interest on time with the money she remitted to him.  She stopped remitting money to her father after her employment was terminated.  Her father stopped repaying the loan since December 2018.  She learnt from her father that the loan shark and two armed men went to her home to demand repayment in December 2018.  They assaulted his father with a wooden stick.  Before leaving, they threatened to kill her and her father if they failed to repay the loan.  Her father went to a local clinic for medical treatment but did not file a complaint with the police.  To avoid the loan shark, her father moved to her grandmother’s place.  During her call with her father in May 2021, his father told her that the loan shark had located him and confronted him with another man.  However, he was not hurt in that incident because the neighbours intervened.

8.Tang was married and refused to divorce his wife to marry the 1^st Applicant.  However, he agreed to support her and her daughter financially.  The 1^st Applicant worried that as an unmarried mother and a Muslim she would be totally unacceptable and unforgivable in Indonesia because of religious reasons.  She also feared that her relatives and friends would not accept her for having a relationship with someone with a different religion and her daughter for being born out of wedlock.  For the same reasons, she also feared that she and the 2^nd Applicant would be discriminated, persecuted and even subjected to physical harm from the villagers.

9.The Applicant claims that state protection is not available, as the police in Indonesia is corrupt.  She does not believe internal relocation feasible because the loan shark would be able to locate her throughout the country.

The finding of the Board

10.The Board accepted the Applicants’ case as the 1^st Applicant asserted and took no issue on her credibility.   The Board found part of the Applicants’ claim arose out of a private dispute between the 1^st Applicant and the loan shark and part is a private dispute between the Applicants and their and neighbours in which the state was not involved.  The state was unaware of the conduct of the loan shark as the Applicants had not made any complaint to the police.  There was no state acquiescence to the loan shark’s conduct.  For these reasons, the Applicants’ claim under Torture Risk ground failed.

11.On the evidence, the loan shark located the 1^st Applicant’s father twice, assaulted and ill-treated him but released him.  The injuries suffered by her father were not serious and he remains safe in Indonesia.  No other members of the family had been ill-treated by the loan shark.  From these facts, the Board drew the inference that the loan shark’s purpose in ill-treating the 1^st Applicant’s father was to pressurize him to repay the loan and had no intention to seriously harm or kill him.  It is all the more unlikely that the loan shark’s intention towards the 1^st Applicant would be otherwise.  The Board found on the basis of authoritative and credible country of origin information (“COI”) that state protection would be available if the 1^st Applicant seeks help from the police.  Furthermore, it found the Applicants’ risk of harm is localized and rejected her argument that the loan shark could locate her throughout Indonesia as illogical.  The Board therefore found she could avoid the risk from the loan shark through internal relocation and by seeking state protection.   Hence, dismissed her claim under BOR 3 Risk ground.

12.The Board accepted that a child born out of wedlock is not acceptable under Islamic law and the 2^nd daughter may be discriminated by the 1^st Applicant’s family members and neighbors. Though not expressly mentioned, the Board must have also accepted that the 1^st Applicant being the mother of the daughter born out of wedlock is likewise not acceptable.  In fact, the Board’s consideration under Persecution Risk ground was related to protection for both Applicants.  The Board found as the 1^st Applicant had been maintaining good relationship with her father and brother and had helped to repay her father’s loan and there was no evidence that her family members would discriminate against her daughter and obviously against her as well.  As for discrimination from the villagers and neighbours, the Board found on the basis of the COI, there are government agencies and charity organisations, such as the Indonesian Child Protection Commission, which render suitable assistance to and protect a child not born to a legitimate marriage or to single mothers.  It also found on the basis of the COI, that there are districts or cities in Indonesia that are less Muslims populated or are Christian dominated where people would take a more liberal view towards sex and birth out of wedlock to where the Applicants could relocate to live in safety.  Hence, the Board found the Applicants’ claim under Persecution Risk ground failed.

13.The Board also found the Applicants’ lives are not at risk under BOR 2 Risk ground.         

Legal principles applicable to judicial review

14.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[6].

Grounds for judicial review

15.In their Form 86 and supporting affirmation, the 1^st Applicant had not advanced any ground of appeal.  She only reiterated in her affirmation that she and her daughter would be in danger if returned to Indonesia because the creditor would kill her for her inability to repay the loan, and that she and her daughter would be subjected to insult and ridicule because the 2^nd Applicant was born out of wedlock.  In effect, she is seeking to challenge the Board’s finding of fact that she and her daughter had failed to prove that they would face real harm or real risk of harm if returned to Indonesia.  For reasons as explained in the preceding paragraph, this is not permissible in an application for judicial review.

16.At the hearing after the legal principles in the preceding section had been explained to her, the 1^st Applicant said she had no complaints about errors of law, but would leave it to the Court to examine the Decision for such errors.  She confirmed she had no complaint about procedural unfairness or irrationality in the Decision and had no final submission to make.

17.In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. 

Overall scrutiny

18.The leave application is now made solely in relation to the 1^st Applicant.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board analysed the evidence carefully, tested it against common sense, inherent probability and independent COI.  It gave full reasons for its finding.  The Board primarily assessed the 1^st Applicant’s claim on the basic of her evidence, but nevertheless found she had failed to establish the factual basis to support her claim for non-refoulement protection under any of the four applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review has no realistic prospect of success. 

Conclusion

19.For the above reasons, the leave application is refused.

Dated the 31^st day of July 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

[1] CACV 63/2015 (unreported) 3 November 2015

[2] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[3] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[4] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[5] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[6] [2018] HKCA 524 at [14(1)]