ERIKA HENY SAFITRI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2621/2019

[2025] HKCFI 437

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2621 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 26 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). In Form 86, the applicant asked for leave for judicial review of other decisions, which have been superseded by the Board’s Decision. Therefore, no order should be made for them.

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 38, is a national of Indonesia. She came to Hong Kong to work as a domestic helper on 5 February 2017. Her employment was terminated prematurely. She overstayed since 14 March 2017. She was arrested by police and referred to the Immigration Department on 22 November 2017. By way of a written representation received by the Immigration Department on 26 January 2018, the applicant lodged her non-refoulement claim on the basis that, if refouled, she will be harmed or killed by her husband and the loan shark of her husband.

5.  According to the applicant, she married her husband in 2011. Since then, her husband abused her by hitting her every day. She intended to divorce her husband, but he disagreed. She stayed in her mother’s house. In 2012, her husband wanted to sell the mobile phone. She asked him not to do so. He smashed the mobile phone, pushed her onto the floor and stepped on her head. She was then unconscious.

6.  On 15 November 2015, her husband assaulted her in the presence of her mother. He then ran away and was not to be seen again.

7.  In about 2014, her husband borrowed 125 million Indonesian Rupiahs from a loan shark. He had also borrowed money from a bank. He was unable to pay the installments. The loan shark and the bank staff demanded her to pay for her husband. In 2015, she left Indonesia for Hong Kong. In Hong Kong, she received a message of her husband from the Facebook. He threatened her that if she divorced him, he would kill her.

8.  She did not consider the state would protect her as she had no money to bribe them. Nor did she think internal relocation would be viable as it would be difficult to find a job.

The Director’s Decision

9.  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”).

10.  By way of the Director’s Notice of Decision dated 28 December 2018 (“the Director’s Decision”), the Director dismissed the applicant’s claim. The Director found that: (i) it was not acceptable that her perceived ill-treatment from her husband and the loan shark or the bank is imminent, foreseeable or substantiated [12]-[18]; (ii) state protection will be available to her if she returns to her country [19]-[22]; (iii) there will be other official or non-official channels available to her [24]; and (iv) internal relocation will be viable [25]-[26].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board. On 13 June 2019, the Board conducted an oral hearing for her with an interpreter.

12.  Having considered the applicant’s evidence [103]-[159], the Board came to the conclusion below:

(1) the Board accepted that her husband did threaten and assault her and the loan shark and the bank did threaten her [163];

(2) there was no evidence that the state was involved in it [167];

(3) there was no evidence that the state was unwilling to help her [168];

(4) there was no evidence that the applicant was tortured and she did not suffer any severe pain or suffering physical or mental at the hands of her husband or the loan shark when she was in Indonesia [172];

(5) there was no evidence to show that the applicant will be subjected to BOR 2 risk [179]; and

(6) the return of the applicant to Indonesia will not be unreasonably or unduly harsh [209].

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

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

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

15.  The applicant has not raised any specific ground to challenge the Board’s Decision.

DISCUSSION

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.

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 applicant has raised no valid ground to challenge the Board’s Decision. There is no good reason that the Court should interfere with the Board’s findings of the fact.

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

DISPOSITION

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