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

HCAL 3021/2019

[2025] HKCFI 2822

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3021 OF 2019

_____________

BETWEEN

_____________

_____________

JUDGMENT

_____________

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 8 October 2019 of the Torture Claims Appeal Board (“the Board’s Decision”).

2.  The applicant requested an oral hearing. She appeared before the Court on 4 June 2025.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 40, is a national of Indonesia. She was a domestic helper and was allowed to stay as such until 1 January 2016. Her contract was terminated and she overstayed since 1 January 2016. She was arrested by police on 6 January 2016. She lodged a non-refoulement claim by 2 written submissions on the basis that, if refouled, she will be harmed or killed by the creditor because she was unable to repay the loans drawn by her parents.

5.  According to the applicant, her father suffered from heart disease and her mother, diabetes. Her parents had borrowed a loan of 100 million Indonesian rupiah from a creditor. In 2015, her father passed away. She had repaid some money to the creditor. She still owed the creditor 85 million Indonesian rupiah. The creditor demanded repayment of the loan. He had forfeited the family home for the loan. Her mother and elder brother had moved to Kalimantan in around July 2016. Whilst she was in Hong Kong, working as a domestic helper, the creditor called her and threatened to kill her.

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

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

(2) 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”);

(3) 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

(4) 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”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) there was no believable evidence to show that she will run the risk of harm from the creditor if she returns to Indonesia [13]; (ii) state protection will be available to lower or negate the risk of harm [14]; and (iii) internal relocation is viable [15].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 11 March 2019, the Board conducted an oral hearing for her.

9.  Having considered the applicant’s evidence, the Board dismissed her appeal and confirmed the Director’s Decision for the reasons below.

(1) The Board found that the applicant was not a forthright witness and that her account of her claimed experiences was not credible. [8.2]

(2) The Board found that her claims to be materially inconsistent, confused and incoherent and, in the final analysis, entirely unpersuasive. [97]

(3) The Board considered she had fabricated her story to create a basis for her application for protection from refoulement. It concluded that it could not rely upon her evidence. [102]

10.  For the above reasons, the Board dismissed her appeal.

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

11.  The applicant has filed Form 86 dated 14 October 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In her affirmation in support of her application, the applicant has not raised any specific ground to challenge the Board’s Decision.

DISCUSSION

13.  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).

14.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, she said that the Board’s Decision was not wrong.

15.  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.”

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

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

DISPOSITION

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