SITI MASITHOH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2474/2019

[2025] HKCFI 608

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2474 OF 2019

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 16 August 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. She appeared before the Court on 27 January 2025.

The applicant

3.  The applicant, aged 42, is a national of Indonesia. The applicant arrived to Hong Kong as a domestic worker, but when her contract was prematurely terminated, she overstayed since August 2018. She surrendered to the Immigration Department on 6 November 2018. She lodged her non-refoulement claim on 12 April 2019 and 18 April 2019 on the basis of being harmed or killed by her husband because she refused to pay his debt for him.

4.  According to the applicant, her husband was a gambler. He had lost money in gambling and had borrowed money from his creditor. He asked her to repay the loan for him. She refused whereupon he beat her up by kicking and punching. She had bruises all over her body. He had also poured boiling water over her shoulder. He threatened to kill her if she refused to pay off his debts. She came to Hong Kong to work as a domestic helper. But she did not repay her husband’s loan.

The Director’s Decision

5.  The Director had rejected her torture claim. Therefore, the Director considered the applicant’s claim in relation to the following risks:

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

b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

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

d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. In summary, the Director found that: the risk of harm from the applicant’s husband is assessed to be low when taking into account that the husband never had a job or affiliation with any political party or government officials in Indonesia, and also taking into account past encounters between the applicant and the husband [14-15]; no evidence that the applicant’s case involved any government officials [16]; state protection was available and the applicant would be afforded reasonable protection by the authorities [17-19]; and internal relocation alternatives were available and reasonable [20].

The Board’s Decision

7.  The applicant appealed the Director’s Decision to the Board. The applicant requested for her appeal to be decided without a hearing and confirmed by letter on 7 August 2019 [4].

8.  Having considered the evidence, the Board found that general nature of the applicant’s claim was largely based on her own assertion and that she did not adduce any evidence to support her claim that her husband was a bad character and had ill-treated her when she refused to pay his debt to a loan shark [58]. Further, the Board found that the applicant’s evidence was not credible [77]. In any event, the Board reviewed the country of origin information (“COI”) and was satisfied that the Indonesian government has taken steps to provide reasonable state protection against domestic violence [33-42, 73-75, 82-83]; and internal relocation was available [44-44, 84]. In conclusion, the Board held that the applicant’s claim failed under all applicable grounds. It therefore dismissed her appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

9.  The applicant has filed Form 86 dated 27 August 2019 for leave to apply for judicial review of the Board’s Decision.

10.  The applicant enclosed 8 points of grounds on which relief is sought, which can be summarised as follows: the Director and Board Decisions were not reasonable and fair; the Director in the Decision failed to appreciate or give the proper importance or weight to state Acquiescence; the Director and Board acted unreasonably and procedurally unfair by paying too much reliance on the COI; the Director failed to give enough weight and this was a “clean case of unfair attitude”; and that the Board Decision was irrational. The applicant provided no particulars or details to these bare assertions.

DISCUSSION

11.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

12.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant simply asked the Court to review the Board’s Decision.

13.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI 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.”

14.  Those grounds under paragraph 10 are not valid to challenge the Board’s Decision because they are her bare assertions or personal opinions without any evidence in support.

15.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

16.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.