Tumilah v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1780/2024

[2025] HKCFI 80

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1780 OF 2024

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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 Torture Claims Appeal Board/Non-refoulement Claims Petition Office’s Decision dated 19 July 2024 (“the Board’s Decision”) dismissing her appeal against the Director’s Decision as described below, rejecting her non-refoulement claim.

2.The applicant asked for a hearing. She appeared before the Court on 2 December 2024.

The applicant

3.The applicant, aged 43, is an Indonesian. She last arrived in Hong Kong on 18 August 2018 to work as a foreign domestic helper (“FDH”). Her last employment contract was prematurely terminated on 24 September 2021 and she had overstayed since 9 October 2021. The applicant was arrested for overstaying and taking up employment while in breach of limit of stay on 24 October 2023 and was subsequently sentenced to imprisonment of 15 months. The applicant made a non-refoulement claim on 12 November 2023. The claim was made on the basis that, if refouled, she would be harmed or even killed by her ex-husband and a loan shark (“the loan shark”).

4.According to the applicant, she married her ex-husband in 2000 as arranged by her family and she gave birth to her son in 2001. Since their marriage, the applicant had suffered abuse from her ex-husband, but she admitted that she was not injured. In March 2016, her ex-husband took out a loan from the loan shark using her name. Eventually, the applicant and her ex-husband divorced in September 2016.

5.The applicant claimed that throughout the years, her ex-husband and the loan shark had threatened her through her son to repay the debt. When the applicant returned to Indonesia to attend her mother’s funeral in August 2018, she was also urged by them to settle the loan.

6.The applicant last contacted her son in October 2023 and was informed that her ex-husband and the loan shark were still after her. Her ex-husband even attempted to make her son surrender the house certificate to settle the debt. The applicant was of the view that she could not seek protection from the police because they would not handle private debt disputes. She also considered internal relocation not viable because she lacked the necessary resources and connections.

7.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 26 February 2024 (“the Director’s Decision”).

The Director’s Decision

8.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”).

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that (i) the low intensity of past ill-treatment received by the applicant indicated that her risk of harm was not as imminent and substantial as asserted [12]-[13]; (ii) there was no evidence showing that her ex-husband and the loan shark had the means to track her down anywhere within Indonesia [14]; (iii) state protection would be available [15]-[19] and (iv) internal relocation would be viable [20]-[25].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 23 May 2024, the Board conducted an oral hearing.

11.The Board found the applicant did not suffer any physical injury from her ex-husband as well as the loan shark and that the matter concerned was purely private with no evidence of state involvement. The country of origin information further indicated the availability of state protection as well as internal relocation and that the applicant could also resort to other non-governmental organisations for assistance. Based on such findings, the Board rejected the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk [37]-[64].

12.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

13.The applicant has filed Form 86 on 8 October 2024 for leave to apply for judicial review of the Board’s Decision.

14.In her affirmation in support of her application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

15.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).

16.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that she did not mean that the Board was wrong. Nevertheless, she asked the Court to review it.

17.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.”

18.The applicant has raised no valid reason to challenge the Board’s Decision. There is no reason for the Court to interfere with the Board’s Decision.

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

DISPOSITION

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

The applicant appeared in person.