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

HCAL 868/2023

[2025] HKCFI 609

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 868 OF 2023

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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 25 May 2023 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. She appeared before the Court on 27 January 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 35, is a national of Indonesia. The applicant came to Hong Kong as a domestic worker, but when her contract was terminated prematurely, she overstayed from 9 May 2020 and surrendered to the Immigration Department on 10 March 2021. She lodged her non-refoulement claim on 8 April 2021.

5.  The applicant’s claim was based on her fear of being harmed or killed by her husband due to her extramarital affair in Hong Kong.

6.  According to the applicant, her husband was one of the gangsters in Indonesia. He did not work, but only hang around, smoking, gambling and fighting with others. She came to worked as a domestic helper in Hong Kong in July 2019. In Tai Po market, she met an Indian man, with whom she fell in love and had extra-marital affairs. Her friend told her husband about it. He was enraged and threatened to kill her when she came back to Indonesia.

The Director’s Decision

7.  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”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. In summary, the Director found that: there was no real and personal risk that the applicant would be harmed or killed due to only being verbally threatened by her husband and no evidence that the husband is still interested in harming the applicant. It was not accepted that her husband could mobilize resources to search for the applicant throughout the country, and it was a private dispute [12-14]; state protection was available and the applicant would be afforded reasonable protection by the authorities [15-20]; and internal relocation alternatives were available, not unduly harsh and reasonable [21-26].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 23 January 2023, the Board conducted an oral hearing for her appeal, during which she confirmed the truth and correctness of all the evidence contained in her hearing bundle [34]. Before the Board, the applicant was unable to elaborate or provide further evidence when asked about how her husband threatened to kill her over her extramarital affair or provide evidence as to their communications [39-42].

10.  Having considered the evidence, the Board found that the applicant made bare assertions and provided no objective proof. Though inconsistencies in her account may not be fatal to the claim [36]; and taken at its worst, the applicant’s husband was a low level local thug without regular occupation or income [69]. As to her allegation that she would be found by her husband when she applied to renew her identity card, the Board considered the registration of documents to renew her identity card would be in a public place even if the husband were to find out her whereabouts [78-83]. In any event, the Board reviewed the country of origin information and was satisfied that the applicant could internally relocate [70-77]. 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 5 June 2023 for leave to apply for judicial review of the Board’s Decision.

12.  The applicant has raised no specific ground to challenge the Board’s Decision in her supporting affirmation.

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 she wanted to stay with her boyfriend here.

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.