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

HCAL 2927/2019

[2025] HKCFI 1893

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2927 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 23 February 2018 of the Director (“the Director’s Decision”) and the Decision dated 28 August 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The Director’s Decision has been superseded by the Board’s Decision.

2.  The applicant requested an oral hearing. She appeared before the Court on 7 April 2025.

The applicant

3.  The applicant, aged 54, is a national of Indonesia. She came to Hong Kong on 11 February 2016 as a visitor. She overstayed since 13 March 2016. She surrendered to the Immigration Department on the next day. She made her non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her creditor because she was unable to repay her loans to them.

4.  According to the applicant, she had borrowed 2 loans from the loan sharks for her mother’s medical expenses. She was unable to repay and the loan sharks had threatened to kill her if she was unable to repay her loans. She came to Hong Kong in order to avoid them.

The Director’s Decision

5.  The Director had rejected her torture claim. Therefore, 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”).

6.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) the loan sharks did not assault her and the loans were monetary disputes between herself and the loan sharks; (ii) state protection will be available; and internal relocation is viable. [12]-[17].

The Board’s Decision

7.  The applicant appealed the Director’s Decision to the Board. On 10 and 14 June 2019, the Board conducted an oral hearing for her with an interpreter.

8.  Having considered the applicant’s evidence, the Board came to the conclusion that there is no real risk if she returns to Indonesia and she should be able to live without fear of the alleged harm or undue hardship if she returns to Indonesia and lives in the City of Jakarta, the City of Surabaya or the City of Semarang. [224]-[226]. The Board dismissed her appeal and confirmed the Director’s Decision. [240]

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

9.  The applicant has filed Form 86 dated 4 October 2019 for leave to apply for judicial review of the Board’s Decision.

10.  The applicant has raised the grounds below in support of her application:

(1) she believes that the Board’s Decision is wrong and Wednesbury unfair, without regard to BOR 2 risk, her right to life;

(2) no consideration was given to state acquiescence; and

(3) her argument was not taken into account.

DISCUSSION

11.  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).

12.  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 she did not fully understand the Board’s Decision. I explained the Board’s Decision to her. She said that she felt her life being threatened and asked the Court to review the Board’s Decision.

13.  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.”

14.  Those grounds under paragraph 10 are her bare assertions or personal opinions without any evidence in support. The applicant has raised no valid ground to challenge the Board’s Decision.

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

DISPOSITION

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