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

HCAL 3317/2019

[2025] HKCFI 3641

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3317 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

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 8 August 2019 of the Torture Claims Appeal Board (“the Board’s Decision”).

2.  The applicant requested an oral hearing. However, she was absent at the hearing on 16 July 2025. I shall deal with her application on the papers.

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 is an illegal immigrant. She worked as a domestic helper, but after her employment contract had terminated, she did not depart and overstayed. She surrendered to police and made a torture claim to the Director of Immigration (“the Director”), who rejected her torture claim.　She then lodged a non‑refoulement claim on the basis that, if refouled, she will be harmed or killed by her father or discriminated by the society of Indonesia because she had given birth to a son in her relationship with an American, who then abandoned her. When her father knew about this, he was furious and threatened to kill her as she had brought disgrace to the family.

The Director’s Decision

5.  The Director had refused her torture claim. The Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  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

c.  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 Notice of Decision dated 30 May 2018 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, the Director found that state protection will be available and internal relocation is viable, which will mitigate or neutralize the applicable risks.

The Board’s Decision

7.  The applicant appealed the Director’s Decision to the Board. On 9 May 2019, the Board conducted an oral hearing for her. She was represented by a duty lawyer. She had given oral evidence and answered questions from government counsel acting for the Director and the Board.

8.  Having considered the applicant’s evidence [42]-[72], the Board accepted the applicant’s evidence on her relationship with the American and she had given birth to her son (who is not an applicant in this action, nor was an applicant before the Director or the Board). The Board also accepted that her father and family do not approve the relationship. However, the Board found that her family will not harm her if she returns to Indonesia. The Board further considered the possible situation of her and her son if they return to Indonesia and found that there was no evidence, which supports that they will face a real risk of ill-treatment or harm as claimed. The Board did not accept that her son will be discriminated or harmed if he returns to Indonesia. Furthermore, the Board found that state protection is available to her and internal relocation is viable. See the Board’s Decision through hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003317_2019_files/the_Board's_Decision.pdf.

9.  For the above reasons, the Board dismissed her appeal.

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

10.  The applicant has filed Form 86 dated 6 November 2019 for leave to apply for judicial review of the Board’s Decision.

11.  The applicant has raised no specific reason 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.

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 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.

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

Form CALL-1