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

HCAL 2966/2019

[2025] HKCFI 1461

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2966 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 December 2016 of the Torture Claims Appeal Board (“the Board’s Decision). Her application is late. Her application shall not be later than 3 months from the date of the Board’s Decision, which expired on 16 March 2017. Her application was filed on 9 October 2019, and is late for more than 2 and a half years. This issue will be dealt with below.

2.  The applicant requested an oral hearing. She appeared before the Court on 31 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 is a national of Indonesia and arrived in Hong Kong on 16 October 2011 as a domestic helper. However, when her employment contract was prematurely terminated on 21 February 2013, she overstayed since 10 March 2013 and in due course, the applicant lodged her non-refoulement claim.

5.  The applicant’s claim was based on her fear of being harmed or killed by her husband or the loan shark that her husband had borrowed money from.

6.  According to the applicant, she was threatened by her husband that he would torture and murder her for refusing to pay his loan to the loan shark. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 22 July 2016 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 on all applicable grounds except BOR 2 risk and dismissed her claim. In summary, the Director found that: the level of risk of harm from her husband and/or loan shark is low and too far-fetched [13- 15]; reasonable state protection is available [16]; and internal relocation alternatives are available and reasonable, if she returns to her country [17-20].

9.  By way of the Director’s Further Decision dated 29 November 2016, the Director assessed the applicant’s claim on all applicable grounds including BOR 2 risk and dismissed her claim. In summary, the Director found that: there was no reply from the applicant to provide additional materials or facts under HKBOR [3]; and having carefully reviewed the applicant’s claim, it was considered that the applicant has failed to establish BOR 2 risk [5-6].

The Board’s Decision

10.  The applicant appealed against the Director’s Decision, where the deadline fell on 5 August 2016. It was only until 3 October 2016 when the appeal was filed, a delay of almost 2 months.

11.  The Board did not conduct an oral hearing and refused the applicant’s application for an extension of time to file the appeal. For the sake of completeness, having considered the evidence, the Board found that there was no evidence of physical or mental pain or suffering [17]. In any event, having considered the COI, internal relocation was generally viable [19-22]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds besides BOR 2 risk even if the late filing of her appeal were to be allowed. It therefore dismissed her appeal and confirmed the Director’s Decision and Director’s Further Decision.

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

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

13.  The applicant has filed Form 86 dated 9 October 2019 for leave to apply for judicial review of the Board’s Decision.

14.  In the applicant’s affidavit in support of her application, the applicant deposed that she would like to review and reject the Board’s Decision, but again did not put forth any grounds.

DISCUSSION

15.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

16.  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).

17.  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 was late because she was ill. She said that the Board was not wrong.

18.  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.”

19.  The Board had considered the merits of the applicant’s case before it dismissed her application.

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

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

DISPOSITION

22.  I refuse to extend time for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.