Yatini-saroh v. Torture Claims Appeal Board
|
HCAL 1230/2024 [2026] HKCFI 5565 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1230 OF 2024 BETWEEN
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 29 July 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 11 December 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 24 November 2022, which rejected her non-refoulement claim. Amendments 3.The applicant named the Board and “Non-Refoulement claims Petition office” as both the putative respondents and the putative interested parties in Form 86, when only the Board should be the putative respondent, and the Director should be the putative interested party. 4.The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a putative party at all. 5.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”. Late application 6.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made. 7.However, the applicant filed Form 86 on 29 July 2024, which was more than 7 months after the Board’s Decision (made on 11 December 2023). The applicant was hence late for more than 4 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application. 8.As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:
9.The applicant did not make any application for extension of time and provided no explanation for the delay when she filed the Leave Application. 10.At the oral hearing before this court on 24 September 2026, the applicant explained the delay by saying that she did not know the procedures and her friends told her to wait for the letter. However, the applicant confirmed that she received the Board’s Decision by post at her reported address around 2023. The applicant further explained her delay by saying that she was sick at the material time and she was confused. 11.A delay of more than 4 months is substantial, and the applicant’s explanations for the delay are clearly unsatisfactory. Ignorance of the court’s procedures is generally not an excuse. The applicant in fact confirmed that she received the Board’s Decision by post in 2023. Even if she was sick at the material time, there was no reason for her not to make the Leave Application for all these months. More importantly, there is no merit in the Leave Application at all as discussed below. 12.Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application. The Leave Application can therefore be dismissed on the ground of being made out of time alone. 13.However, for the sake of completeness, this court will still deal with the Leave Application as discussed below. The applicant’s case 14.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. 15.In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be at risk of being harmed or killed by Roji, her husband’s creditor, as her husband owed Roji a loan that she failed to repay. Oral hearing 16.The applicant requested for an oral hearing of the Leave Application and her case was heard on 24 September 2026. 17.As the applicant had on 15 June 2026 filed a summons together with her affirmation dated 15 June 2026 requesting to submit a certificate of marriage, this court first asked the applicant for the purpose of the summons. 18.The applicant confirmed that the purpose of the summons was to show to this court that she is now married to a Hong Kong resident. The applicant said that her husband is now fully responsible for her. 19.This court then explained to her that the summons was irrelevant to the Leave Application, which was dealing with her challenge against the Board’s Decision regarding her non-refoulement claim. 20.As to the grounds for the applicant’s intended judicial review, she merely said that she is now married in Hong Kong, her husband is in Hong Kong, she is staying in her husband’s home, and her husband and his family have responsibility for her and her children. She added that she does not have anything in Indonesia, as her ex-husband had taken all her properties and there was nothing left. Grounds for judicial review 21.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). 22.The applicant did not advance any grounds for the intended judicial review in Form 86. 23.In her supporting affirmation dated 29 July 2024, the applicant only mentioned that she did not want to go back to Indonesia because her life was in danger, the loan sharks would kill her as she did not have money to repay the debt. 24.What the applicant said at the oral hearing before this court were not valid grounds for judicial review at all. Discussion 25.First of all, this court will deal with the applicant’s said summons filed on 15 June 2026 and her affirmation dated 15 June 2026. 26.As aforesaid, the applicant confirmed that the sole purpose of the summons was to prove that she is married in Hong Kong to a Hong Kong resident. However, the fact that she has a family here in Hong Kong is simply irrelevant to the Leave Application. 27.As held by the Court of Final Appeal in Comilang & Ors v Director of Immigration [2019] HKCFA 10, family unity rights were not a bar to refoulement of foreign nationals without a right of abode, even when they have a spouse and children who are permanent residents of Hong Kong. Thus, separation with her husband was not a basis on which the applicant could establish her non-refoulement claim. 28.As it would not be relevant to her non-refoulement claim by adducing the document mentioned in the said summons and her affirmation dated 15 June 2026, this court is not prepared to admit it and hence the said summons is dismissed. 29.As to the problem that her ex-husband had taken all her properties from her, this matter was not presented to the Board for consideration of her claim for non-refoulement protection. The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage. 30.Her danger in her home country had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. 31.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). 32.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. 33.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 5 July 2023. The applicant was present and hence she was given the chance to present her case to the Board in person. 34.As can be seen from the Board’s Decision, the Board had discussed the applicant’s risk from her husband’s creditor with her at the Board’s hearing. The Board’s assessment on the credibility of the applicant’s claim were laid out in paragraphs 34 to 40 of the Board’s Decision, and it is not necessary to repeat the same here. 35.In gist, the Board found that the applicant had only made bare assertions and provided no objective proof of her assertions on the loan and the threats by the creditor. In fact, the loan was made by her husband and the applicant had not met the creditor, nor heard from him directly. The applicant’s husband who actually borrowed the loan remained safe, and so did the applicant’s family. The Board considered that the harm, actual or perceived, from the creditor was not imminent and the ill-treatment by the creditor, if any, had not attained a minimum level of severity. The future risk as suggested by the applicant was her own speculation only. 36.Furthermore, there was no evidence that the creditor was a state actor. There was no evidence to show that the Indonesian government was involved in her private dispute with the creditor, or that the creditor had ill-treated the applicant with an intention listed in the definition of torture in section 37U of the Immigration Ordinance. The applicant’s fear of the creditor was not related to any of the RC[1] reasons. 37.The Board had also discussed the issue of state protection to the applicant in paragraphs 41 to 46 of the Board’s Decision. In short, the Board found that despite setbacks such as the existence of incompetence and corruption in the government authorities, reasonable state protection would be available to Indonesian citizens and the applicant. 38.Moreover, the Board had given full reasons in paragraphs 91 to 93 of the Board’s Decision for its view that it would not be unreasonable or unduly harsh for the applicant to live anywhere in Indonesia to avoid any perceived risk. 39.Thus, the Board found that the applicant was unable to make out her claims for non-refoulement protection on any of the applicable grounds under the USM. 40.The finding of facts relating to a non-refoulement claim, including the assessment of evidence, country of origin information and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion. 41.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. 42.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 43.For reasons aforesaid, the summons filed on 15 June 2026 is dismissed, and the Leave Application is dismissed for being made out of time and devoid of merits. Dated the 30th day of September 2026
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] The non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol |
Summaries and metadata are generated from the judgment. Report an error
Cases cited in this judgment