SRI PENI BINTI SUKIRAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3108/2019

[2025] HKCFI 2619

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3108 OF 2019

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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 17 October 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 21 May 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 47, is a national of Indonesia. The applicant last arrived in Hong Kong on 8 May 2016 as a visitor but did not depart and overstayed since 8 June 2016. She was arrested by police on 10 June 2016 and 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 stepfather.

6.  According to the applicant, there were money disputes between the applicant and her stepfather after his marriage with her mother in 2002 and she was threatened by him. In January 2008, when the stepfather was drunk he used a rattan to hit the applicant and took three months for her to recover. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 14 September 2018 in Chinese 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 [10-13]; state protection was available and the applicant would be afforded reasonable protection by the authorities [14-18]; and internal relocation alternatives were available, not unduly harsh and reasonable [19-24].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 16 May 2019, the Board conducted an oral hearing for her appeal, during which the applicant stated that while her stepfather may still be angry, but if she gives him extra money within her affordability, he will be unlikely to harm or kill her [20].

10.  Having considered the evidence, the Board found no issue with the applicant’s credibility [28] but concluded that this case was between private individuals and no proof that public officials were involved [31] or that the applicant had established real risk pertinent to any of the applicable grounds [51]. In any event, the Board was satisfied that state protection was available based on the Country of Origin Information [45-48] and that internal relocation was available [48]. 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 21 October 2019 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 affirmation in support of her application.

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.

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.