WAHYU SRI MUKTI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2591/2019

[2025] HKCFI 994

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2591 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 16 July 2019 of the Torture Claims Appeal Board (“the Board’s Decision).

2.  The applicant requested an oral hearing. She appeared before the Court on 3 March 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 49, is a national of Indonesia. She worked in Hong Kong as a domestic helper. Her employment contract was prematurely terminated on 14 February 2012 and she should depart. She overstayed since 29 February 2012 and was arrested by police on 26 March 2012. She lodged her non-refoulement claim by written representation on the basis that, if refouled, she will be harmed or killed by her ex-boyfriend, Bambang, because he demanded her family to hand over the house to him and wanted her to marry him.

5.  According to the applicant, she met Bambang in 2001. In 2005, Bambang contributed money for the purchase of the family house. Later in the same year, she broke up with him. He demanded the family to hand over the house to him. He took some gangsters to her house. In the course of dispute, one of his gangsters shot her brother to death. He continued his demands by SMS. In December 2009, she complained to police about the murder of her brother. Bambang was furious and threatened to kill her. One night, he came with 2 men and took her to an unknown place where they slapped and kicked her causing her to lose consciousness for a few hours. She had bruises on her body. She was locked up for the whole night. He said that he wanted to marry her. She came to Hong Kong to work as a domestic helper.

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 from her experience in Indonesia, future risk of harm is very low; that state protection will be available; and that internal relocation is viable. [12]-[15]

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 5 March 2019, the Board conducted an oral hearing for her with an interpreter.

9.  Having considered the applicant’s evidence, the Board found that it did not accept her evidence of the facts in support of her claim. [51]-[55] The Board therefore dismissed her appeal.

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

10.  The applicant has filed Form 86 dated 5 September 2019 for leave to apply for judicial review of the Board’s Decision.

11.  The applicant has raised no specific ground to challenge the Board’s Decision.

DISCUSSION

12.  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).

13.  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 mean that the Board was wrong. Nevertheless, she wanted the Court to review the Board’s Decision.

14.  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.”

15.  The applicant has raised no valid ground to challenge the Board’s Decision.

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

DISPOSITION

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