Endang Warsiti v. Torture Claims Appeal Board
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HCAL 1045/2022 [2025] HKCFI 5729 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1045 OF 2022
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 5 October 2022, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 27 April 2021 without identifying the decision-maker. 2.The Torture Claims Appeal Board (“the Board”) made a decision dated 21 July 2022 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 27 April 2021 (“the Director’s Decision”). Thus, it is clear that the date of the decision which the applicant put in Form 86 was the date of the Director’s Decision. 3.However, the applicant named the Board as both the putative respondent and the putative interested party in Form 86. The applicant also attached a copy of the Board’s Decision to her supporting affirmation dated 5 October 2022. It is therefore clear that the applicant was seeking to challenge the Board’s Decision in the Leave Application. The Board’s Decision can be viewed in the following hyperlink: 4.The Board found that the applicant was unable to make out her claims for non-refoulement protection. Hence, the Board rejected the applicant’s appeal/petition on all the applicable grounds under the Unified Screening Mechanism (“the USM”) and confirmed the Director’ Decision, which rejected her non-refoulement claim. Amendments 5.As aforesaid, the applicant named the Board as both the putative respondent and the putative interested party in Form 86. However, she spelt the Board’s name wrong. 6.In fact, the Board should only be the putative respondent and the Director should be the putative interested party. 7.Moreover, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision. 8.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration” and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 21 July 2022”. The applicant’s case 9.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. 10.In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, her father and younger brother might kill her for being a lesbian. Her father was a very religious person and a respected religious figure in their area. Her father considered that lesbian behavior was totally unacceptable according to Islam. He threatened to flog her 100 times as a punishment and also threatened to kill her despite her apology. Withdrawal of the Leave Application and the applicant’s removal from Hong Kong 11.By her affirmation dated 12 November 2024, the applicant applied to withdraw her judicial review. She stated in the affirmation that she wanted to go back to her country and she would go home as soon as possible. However, she did not state that it was safe for her to return to her home country or that her problem in her home country had been solved. 12.Before the Leave Application and the applicant’s withdrawal application could be dealt with by this court, on 23 June 2025, the Director informed this court that the applicant was removed from Hong Kong during the period from 17 February 2025 to 22 June 2025. 13.There is no evidence to show that the applicant made the above withdrawal application other than out of her own volition. With the withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application. 14.However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-
15.Thus, it is not right to leave the action at large by granting leave to withdraw to the applicant. This court will proceed to deal with the merits of the Leave Application. Grounds for judicial review 16.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). 17.The applicant did not assert any grounds for her intended judicial review in Form 86, nor in her supporting affirmation dated 5 October 2022. Discussion 18.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). 19.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review. 20.In assessing the applicant’s appeal/petition, the Board arranged an oral hearing on 25 August 2021 and the applicant was present. Thus, the applicant did have the opportunity to present her case to the Board in person. 21.Having considered all the evidence, the Board accepted the applicant’s sexual orientation as a lesbian. The Board found from extensive, fully-referenced country of origin information (“COI”) that a lesbian person would be exposed to a real chance of persecution were she to live openly as a gay or lesbian person in Indonesia. The Board then followed the principles as held in HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 to assess the applicant’s risks. 22.Having considered all the evidence before it, the Board considered that the applicant’s inclination was to live discreetly and that she did not feel the need to live openly. On that basis, the applicant did not have a well-founded fear of persecution since she was exercising her choice to live discreetly. 23.Regarding the applicant’s risk from her father and younger brother, the Board considered the viability of internal relocation for the applicant. The Board considered that the applicant, who was about 40 years of age at the time of the Board’s Decision and had about 15 years of experience as a domestic helper, was capable of holding a difficult job in circumstances that were not perfect. Given that the applicant might wish to avoid her immediate family, she could relocate to a large number of places in Indonesia. 24.Thus, although the Board found the applicant could be persecuted in the future if refouled to Indonesia, it had applied the test laid down in HJ (Iran), supra and concluded that the applicant could live discreetly as a lesbian in Indonesia and therefore, her claim for non-refoulement on the ground of Persecution Risk[1] failed. 25.The Board also found the applicant was unable to make out her claims based on Torture Risk[2], BOR 3 Risk[3] and BOR 2 Risk[4] under the USM. 26.The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion. 27.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 errors 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. 28.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys 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 29.For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed. Dated the 25th day of November 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] Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees. [2] Risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115. [3] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [4] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. | ||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment