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

HCAL 5/2025

[2025] HKCFI 1917

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 5 OF 2025

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 27 December 2024 of the Torture Claims Appeal Board (“the Board’s Decision), which dismissed her appeal against the decision of the Director of Immigration (“the Director”), refusing her subsequent claim.

2.  She had made a previous claim in HCAL 2685 of 2018 (“the previous claim”), in which she claimed that, if refouled, she would be harmed or killed by her uncle because of an outstanding loan incurred by her parents for her deceased father’s medical expenses. The previous claim was rejected by the Director and, on appeal, by the Appeal Board.

3.  The applicant applied to the Court of the First Instance for leave for judicial review of the Board’s decision in the previous claim. The Court of the First Instance dismissed her application.

4.  The applicant appealed to the Court of Appeal, which dismissed her appeal.

5.  On 17 July 2024, the Director informed her that she could make a subsequent claim in accordance with section 37ZP of the Immigration Ordinance, Cap. 115 (“the Ordinance”).

6.  By written submissions, the applicant has raised her subsequent claim on the basis that, if refouled, she will be harmed or killed by (i) family members including her three sisters and her maternal uncle named Hartono due to her sexual orientation and her relationship with Ms Dewi Harjar (“Ms Dewi”); (ii) her Muslim relatives in Indonesia as she changed her religion from Islam to Christianity; (iii) her uncle as she was unable to repay the loan to him; and (iv) individuals and communities in Indonesia as there is widespread discrimination against Christian and Lesbian, gay, bisexual, transgender or qurre and intersex (“LGBTQI+”) in Indonesia.

7.  By Notice of Decision dated 27 August 2024 (“the Director’s Decision”), the Director dismissed her subsequent claim. She appealed to the Board.

8.  By the Board’s Decision, the Board dismissed her appeal. Thus, she takes out this application.

The applicant

9.  The applicant, aged 45, is a national of Indonesia. She came to Hong Kong on 27 June 2013 as a domestic helper. Her employment contract was prematurely terminated. She overstayed and surrendered to the Immigration Department on 27 January 2015. She lodged non-refoulement claim with the Immigration Department by a written representation dated 4 May 2015.

10.  As mentioned above, the applicant lodged her subsequent claim with the Director, for which she has submitted to the immigration officer further documents and materials in support of her application.

The Director’s Decision

11.  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”).

12.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) the low intensity of past ill-treatment is indicative of a small future risk of harm upon her return to Indonesia; (ii) her fear of harm by her family members and her Muslim relatives is only her speculation, without any evidence in support; (iii) state protection will be available if she returns to Indonesia as the Indonesian government respects religious freedom; (iv) the Indonesian government and organizations in Indonesia will provide protection and support for her; and (v) internal relocation is viable. [20]-[40]

The Board’s Decision

13.  The applicant appealed the Director’s Decision to the Board. On 20 December 2024, the Board conducted an oral hearing for her with an interpreter.

14.  Having considered the applicant’s evidence [19]-[31], the Board came to the conclusion below.

(1) The Board did not accept that the applicant had converted from Islam to Christianity. [76]-[77]

(2) There was no evidence to show that the Indonesian government will not provide her with protection. [78]

(3) The applicant is a lesbian. [81]

(4) State protection is available to her. [155]

(5) Internal relocation is available to the applicant and it will not be unreasonable or unduly harsh for her to relocate to Jakarta or Bali. [156]

(6) No mental injury was reported by the applicant. [166]

(7) She has never suffered from any form of physical injury from anyone apart from the verbal life threats from her uncle. [167]

(8) There is no evidence to show that the applicant’s uncle took concrete action to intensify the violence against her apart from the verbal life threats. [168]

(9) There is no evidence to show that her sister s took concrete action to intensify the violence against her once they knew that she is a lesbian. [169]

(10) There is no evidence to show that she has been harmed by the people in the Indonesian community on account of her sexual orientation. [170]

(11) On the totality of evidence, the Board found that the applicant faced no genuine and substantial risk of being subjected to ill-treatment if refouled to Indonesia. [172]

15.  For those reasons above, the Board dismissed her appeal on all applicable risks and confirmed the Director’s Decision.

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

16.  The applicant has filed Form 86 dated 2 January 2025 for leave to apply for judicial review of the Board’s Decision.

17.  In the affirmation in support of her application, the applicant has attached a copy of the Board’s Decision to it without stating any specific reason to challenge the Board’s Decision.

DISCUSSION

18.  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).

19.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant complained that the Board did not accept her evidence.

20.  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.”

21.  The Board was entitled to consider her evidence and decided whether her evidence was believable. The Board has given its reasons above.

22.  The applicant has raised no valid ground to challenge the Board’s Decision.

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

DISPOSITION

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