ENDANG-SUSILAWATI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1378/2024

[2025] HKCFI 246

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1378 OF 2024

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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 24 July 2024 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request a hearing. I shall deal with her application on the papers.

The applicant

3.  The applicant, aged 40, is a national of Indonesia. She came to Hong Kong to work as domestic helper on 31 December 2020/ Her employment contract terminated on 30 April 2022. She did not depart and overstayed since 15 May 2022. She was arrested for overstaying. On 20 March 2024, she lodged her non-refoulment claim on the basis that, if refouled, she will be seriously harmed or even killed by her creditor Dedik Supriyadi (Dedik) and his underlings due to a loan dispute.

4.  According to the applicant, she and her husband ran a trading business and they borrowed 2 loans of 750 million Indonesian Rupiah from Dedik. Because of Covid 19, they were unable to pay the monthly payments. Dedik brought with him 7-9 underlings to her home to demand payment twice. They did not harm her or her family members. Her husband had gone to another province and he did not answered her calls. She was scared and had to move to Grobogan for her safety. She decided to leave Indonesia for Hong Kong. She was informed by her mother that Dedik was still looking for her.

5.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 8 May 2024 (“the Director’s Decision”).

The Director’s Decision

6.  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”);

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”); and

d. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on the applicable risks for the reasons that (i) her claimed level of risk was assessed to be low [11] – 16]; (ii) state protection would be available to her [17]-25]; and internal relocation was viable [26]-28].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 11 July 2024, the Board conducted a hearing. The applicant has given oral evidence before the Board.

9.  The Board, having considered the evidence, found:

“61. The Appellant’s evidence as to her loan arrangement with the Creditor is simply considered as incredible and unreliable. …

66. … there is no reliable evidence in support that the Creditor exists and/or that there has been a loan agreement with the Appellant. …

67. …I do not find the Appellant credible and reliable. …

68. … I find that there is no sensible reason for the Credible to harm and kill the Appellant as threatened (even if accepted), as it is plain and obvious that what the Creditor wanted was repayment of money. …

69. I also note that the Appellant had been inconsistent between her prior written significance and answers of her screening interview. …

93. There was no, or no reliable evidence to show that the state of Indonesia was unwilling to help the Appellant for a RC reason.

138. …it will not be necessary for the Board to consider the issue of internal relocation.”

10.  The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

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

11.  The applicant has filed Form 86 dated 20 August 2024 for leave to apply for judicial review of the Board’s Decision.

12.  The applicant did not raise any specific ground 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 Decision 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 failed to raise any valid ground to challenge the Board’s Decision. In my view, the Court has no reason to interfere with it.

17.  The applicant therefore 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 for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.