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

HCAL 3087/2019

[2025] HKCFI 2379

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3087 OF 2019

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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 6 September 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.  The applicant asked for a hearing. She appeared before the Court on 7 April 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 41, is a national of Indonesia. She had a chequered history of coming to Hong Kong and leaving. Her last entry was on 1 September 2015 as visitor until 15 September 2015. On 14 September 2015, she surrendered to the Immigration Department. She lodged a non-refoulement claim by a written representation on the basis that, if refouled, she will be harmed or killed by her father and the creditor because she was unable to settle her father’s debt.

5.  According to the applicant, when she was in Indonesia, her father had incurred debts from the creditors. One day in 2007, she was summoned by her father to return home where she saw her father and a number of creditors. Her father told her to pay her debts to the creditors. He also suggested her marry one of the creditors for the payment of debt. The creditors pushed her and told her to repay her father’s debts. They also threatened to kill her. She did not have any idea as to the amount of her father’s debt. She came to Hong Kong to work as a domestic helper. She met a Pakistani, with whom she had extra-marital affair and had given birth to a son out of wedlock. She is afraid that she will be harmed or killed by her family members because of the son being out of wedlock. She is also afraid that she will be discriminated by other people as well.

6.  Details of her claim are set out at paragraph 7 of the Notice of Decision dated 16 June 2017 (“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 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”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that her experience in Indonesia showed that there will be a small future risk if she returns to Indonesia; that state protection will be available to her; and that internal relocation is viable. [17]-[23]

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 7 December 2018, the Board conducted an oral hearing for her appeal.

10.  Having considered the evidence, the Board found that it is unlikely that the creditors will kill her father if he is unable to repay his debts [70]; that state protection will be available to her [72]-[77]; and internal relocation is viable [78]-[83].

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

11.  The applicant has filed Form 86 dated 18 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 did not raise 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 Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board was not wrong, but she wanted me to review the Board’s Decision.

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 findings.

17.  The Board was entitled to come to its decisions as to the facts of her claim. There is no reason for this Court to intervene with the Board’s decisions.

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

DISPOSITION

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