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

HCAL 2147/2019

[2025] HKCFI 277

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2147 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 25 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request a hearing. I shall deal with her application on the papers.

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 49, is a national of Indonesia. She lodged a non-refoulement claim by way of written submission dated 19 July 2018 on the basis that, if refouled, she would be harmed or killed by her ex-husband and his creditor.

5.  According to the applicant, she married her husband on a date she cannot remember. However, her husband left her behand at home to somewhere else without returning home for a long time. She told her husband that she wanted to divorce him. He did not agreed and slapped her face. Then he left home again. She worked as a domestic helper in Singapore for 2 years. She finally divorced her husband. On 16 April 2015, she came to Hong Kong as a visitor. She was allowed to stay until 26 April 2015. She overstayed. On 30 April 2018, she was convicted of unlawful staying in Hong Kong, for which she was sentenced to 6 weeks’ imprisonment. A removal order was issued against her on 5 July 2018. Whilst she was in Hong Kong, she received phone call from the creditor claiming that her husband owed him money. She clarified with her husband, who confirmed the debt. She was told to pay money to the creditor and to her husband with threat of harm and death if she did not comply with the requests. She had remitted $3000 to her husband for 2 months. Then she ceased remitting money to him. She did not remit any money to the creditor.

6.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 21 January 2019 (“the Director’s Decision”).

The Director’s Decision

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

a. 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”);

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

c. 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”); and

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

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on the applicable risks for the reasons that (i) there is no substantial ground to believe that the claimed future of harm by her ex-husband and the creditor upon her return to Indonesia [11]-[12]; (ii) state protection will be available to her [13]; and internal relocation is viable [14].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. Having considered the case, the Board decided that no oral hearing was necessary and her appeal was dealt with on the papers.

10.  The Board, having considered the evidence, found:

“25. Her fear of ill-treatment does not fall within the definition of persecution in that it was a private dispute among the Appellant, her ex-husband and the unknown creditor and was not on account of race, religious, nationality, membership of a particular social group or political opinion.

34. …it is not acceptable that there is torturing risk from her ex-husband or the unknown creditor if she returns to Indonesia.

38. …the Appellant did not file evidence in support of the same [BOR 2 risk], therefore, her claim under this heading also fails.

39. The Appellant had never sustained any serious pain or suffering caused by her ex-husband or the unknown creditor in Indonesia.”

11.  The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

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

12.  The applicant has filed Form 86 dated 26 July 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In the affirmation in support of her application, the applicant said the Board disregarded her dangerous situation.

DISCUSSION

14.  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).

15.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.  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.”

17.  Her ground under paragraph 13 is not valid to challenge the Board’s Decision. The applicant has failed to raise any valid ground to challenge the Board’s Decision. In my view, the Court has no reason to interfere with it.

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

DISPOSITION

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