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

HCAL 3134/2019

[2025] HKCFI 2456

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3134 OF 2019

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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 10 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 21 May 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 37, is a national of Indonesia. She came to Hong Kong as a domestic helper on 5 August 2017. On 30 May 2018, her employment contract was prematurely terminated. She did not depart and overstayed since 14 June 2018. On 29 June 2018, she surrendered to the Immigration Department and lodged her non-refoulement on the basis that, if refouled, she will be harmed or killed by a loan shark because she was unable to repay her loan.

5.  According to the applicant, she had borrowed money from the loan shark for her father’s medical expenses for his heart disease. She had pledged her house and motor cycle for the loan. Her father passed away in February 2018. She had a boyfriend in Hong Kong and had given birth to a daughter. Her boyfriend is a Hong Kong resident, therefore her daughter has residency in Hong Kong. The loan shark demanded payment of the loan. She was unable to repay. The loan shark had threatened to take away her house and kill her daughter. She and her boyfriend married in Hong Kong in April 2018.

The Director’s Decision

6.  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”);

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) from her experience in Indonesia, the risk of being harmed if she returns to Indonesia is low; (ii) state protection will be available; and (iii) internal relocation is viable. [13]- [24].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 31 May 2019, the Board conducted an oral hearing for her.

9.  Having considered the applicant’s evidence, the Board found the facts below:

(1) The loan shark’s loan had been repaid. [56] & [58]

(2) Taking into consideration of her daughter in Hong Kong and the issue of family unity, since the rulings of the Court of Final Appeal in Comilang & Ors v the Director of Immigration, FACV No. 9 of 2018, this issue shall not be a valid reason for the applicant to support her claim and remain in Hong Kong.

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 23 of October 2019 for leave to apply for judicial review of the Board’s Decision. She did not raise any reason in Form 86.

12.  The applicant has raised the ground of family unity in her affirmation in support of her application, which the Director had dealt with in paragraph 9(2).

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, the applicant said that the Board was not wrong in its decisions.

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 ground raised in paragraph 12 had been considered by the Board and rejected for the reason it had given. 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.