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

HCAL 3190/2019

[2025] HKCFI 1531

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3190 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 9 October 2019 of the Torture Claims Appeal Board (“the Board’s Decision).

2.  The applicant did not request an oral hearing. 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 worked as a domestic helper in Hong Kong. Her employment contract expired, but she overstayed since 14 January 2019. She was arrested the next day by the immigration officers and was convicted and sentenced to 4 weeks’ imprisonment. She raised a non-refoulement claim and claimed that, if refouled, she will be harmed or killed by Tuhari and/or Bobi if she returns to Indonesia.

5.  According to the applicant, in 2003, her mother had borrowed 2 loans from Tuhari for medical expenses for her father. Tuhari suggested her marry his son, who was mentally retarded, as repayment of the loans. She agreed. On the day of the marriage ceremony, she felt embarrassed and pushed Tuhari’s son to a wall and he fell unconscious. He died a few days later. She ran away to avoid Tuhari, who had threatened to kill her. She came to Hong Kong to work as a domestic helper. She acquainted with Bobi online. He promised to marry her. She remitted her wages to him. This online relationship went on for 7 years. She then returned to Indonesia, only to discover that Bobi was married with a child. His wife drove her away. She demanded Bobi to return the money she had sent to him. Bobi was unable to repay the money to her. She went to him again. They poured kerosene on her. She was scared and ran away. She returned to Hong Kong.

6.  Details of her story are set out in paragraph 6 of the Notice of Decision dated 20 June 2019 (“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 dismissed the applicant’s claim. The Director found that: (i) her fear of being killed or harmed by Tuhari is not imminent as she alleged; (ii) state protection is available if Tuhari harms her in Indonesia and it is only her speculation that Bobi will harm her if she returns to Indonesia; (iii) state protection is also available to her if Bobi harms her; and (iv) internal relocation is viable. [13]-[22]

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 10 September 2019, the Board conducted an oral hearing for her with an interpreter.

10.  Having considered the applicant’s evidence, the Board came to the conclusion that the applicant’s information and evidence, in material aspects of the case, were conflicting and inherently incredible and it could not base on such evidence to reach a decision in her favour. It therefore dismiss her appeal. [43] The Board further held that even if it accepted her evidence, it would still dismiss her appeal because relocation would be viable and her feared ill-treatment would not be likely to materialize [46]; and that there was no substantial ground for believing that Tuhari or Bobi would harm her and the state was not involved. [55]

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

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

12.  The applicant has filed Form 86 dated 28 October 2019 for leave to apply for judicial review of the Board’s Decision.

13.  The applicant has not raised any specific reason to challenge the Board’s Decision in her affirmation in support of this application.

DISCUSSION

14.  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).

15.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.  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.”

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

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

DISPOSITION

19.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.