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HCAL 1558/2021
[2025] HKCFI 3251
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1558 of 2021
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BETWEEN
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Suwanti |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 22 October 2021 of the Torture Claims Appeal Board (“the Board’s Decision).
2. The applicant requested an oral hearing. She appeared before the Court on 2 July 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 47, is a national of Indonesia. She last arrived to Hong Kong on 31 March 2019 as a domestic helper but her contract was prematurely terminated, and was arrested on 18 April 2021 for soliciting for an immoral purpose and breaching of condition of stay for taking up unapproved employment. 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 ex-husband and 3 loan sharks because of failure in repayment of the loan borrowed by the ex-husband using the applicant’s name.
6. According to the applicant, in around 1994, she married her ex-husband but he was a drunker, gambler and womanizer. She was assaulted once per week by her ex-husband and she filed a divorce in 1997. However, in around 1994, her ex-husband used her name to borrow from 3 loan sharks. They did not attack the applicant but verbally threatened to harm or kill her if she does not repay them. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 27 July 2021 by the Director (the “Director’s Decision”) and the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001558_2021_files/the_Board's_Decision.pdf.
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 level of risk of being harmed by either the ex-husband or the loan sharks were assessed to be low, the future risk of harm from her ex-husband was assessed to be low especially if relocated, and it was not accepted that there was a real risk of serious harm or ill-treatment at the hands of loan sharks due to the low intensity and frequency of ill-treatment in the past [13-18]; state protection was available and the applicant would be afforded reasonable protection by the authorities [19-24]; and internal relocation alternatives were available, not unduly harsh and reasonable [25].
The Board’s Decision
9. The applicant appealed the Director’s Decision to the Board. On 7 October 2021, the Board conducted an oral hearing for her appeal, during which the Board assessed the applicant’s evidence [16-42].
10. Having considered the evidence, the Board found that the applicant’s evidence was not believable and simply could not be established [41]. In any event, the Board was satisfied that internal relocation was available and reasonable [55-61]. In conclusion, the Board held 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 has filed Form 86 dated 10 November 2021 for leave to apply for judicial review of the Board’s Decision.
12. The applicant has not raised any 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 Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said the Board was wrong because it rejected her appeal.
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 Decision.
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.
Dated the 9th day of September 2025
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(M.O. WONG)(Ms)
for Registrar, High Court
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Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 9/9/2025
Suwanti
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 9/9/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 18439/21/8/27/I2131
Director of Immigration
Putative Interested Party’s ref. no.:
ImmD/CR T/C 970/21 (formerly RBCZ 10981/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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