MARKINI BINTI WARJO DARNO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3095/2019

[2025] HKCFI 1892

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3095 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 11 October 2019 of the Torture Claims Appeal Board (“the Board’s Decision).

2.  The applicant requested an oral hearing. She appeared before me on 11 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 46, is a national of Indonesia. She last arrived in Hong Kong on 21 June 2014 as a domestic helper but when her contract was terminated prematurely, she overstayed since 12 October 2015. In due course, she lodged her non-refoulement claim.

5.  The applicant’s claim was based on her fear of being harmed or killed by her loan shark as she refused to be sold to him as an alternative method of loan repayment.

6.  According to the applicant, her father had borrowed a large sum of money from a loan shark for her mother’s medical expense. Her father was unable to repay. The loan shark came to her house and proposed to take her as his wife for the debt. She followed him home where he locked her up, telling her that he would sell her to somewhere as a slave. She was detained for around 1 week with no food or water. Fortunately, she told the guards that she had to go to toilet where she escaped through a window. She then went to Taiwan, from where she came to Hong Kong to work as domestic helper. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 26 September 2018 by the Director (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 assessed the applicant’s claim and dismissed her claim. In summary, the Director found that: the absence or low intensity and frequency of past ill-treatments is indicative of a small future risk of harm, no objective evidence showing that the loan shark had exhibited intense and sustained effort to harm or kill the applicant [10-13]; state protection is available and the applicant would be afforded reasonable protection by the authorities [14-15]; and internal relocation alternatives are available, not unduly harsh and reasonable, if she returns to Indonesia. [16-21]

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 4 April 2019, the Board conducted an oral hearing for her appeal, during which the applicant and her interpreter both confirmed that they understood each other, though the applicant did not wish to give oral evidence [7].

10.  Having considered the evidence, the Board found that the applicant’s account of events were credible [30]. However, it found that the level of injury sustained did not meet the minimum level of severity and the threats were only verbal and never escalated into real and actual harm [31-34]. In any event, the Board was satisfied that state protection was available based on the Country of Origin Information [35-38] and that internal relocation was available and reasonable [39-40]. In conclusion, the Board held that the applicant’s claim failed under all applicable grounds. It therefore dismissed her appeal and confirmed the Director’s Decision.

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

11.  The applicant filed Form 86 on 21 October 2019 for leave to apply for judicial review of the Board’s Decision. The applicant did not put forth any valid grounds for her application.

12.  In the applicant’s affirmation in support of her application, she exhibited the Board’s Decision and deposed that the Board disregarded her dangerous situation, but no valid grounds were put forward.

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 did not believe her evidence, which is contrary to the Board’s finding above.

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.  I take a different view from the Board. Given that the Board believed the applicant’s story, the fact that the loan shark would sell her to somewhere as a slave, in my view, will constitute torture as the applicant will be subjected to immense psychological stress and harm. I also take the view that BOR 3 risk will also apply to her case, too. However, I agree with the Board that state protection and internal relocation will alleviate or even negate the applicable risks.

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.