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

HCAL 2515/2019

[2025] HKCFI 577

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2515 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 2 August 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. However, she as absent at the hearing on 27 January 2025. 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 is a national of Indonesia. The applicant came to Hong Kong as a domestic worker, but when her contract expired, she overstayed from 2 August 2013 and was arrested on 19 March 2015 for overstaying. On 20 April 2015, she was convicted of the offence of breach of conditions of stay by overstaying and was sentenced to 2 months’ imprisonment suspended for 3 years. She lodged her non-refoulement claim on 19 June 2015.

5.The applicant had a minor daughter born in Hong Kong on 11 July 2013 to which the father is a Hong Kong resident. Her daughter is not considered in this claim.

6.The applicant’s claim was based on her fear of being harmed or killed by her ex-husband for the fact that she has a boyfriend in Hong Kong.

The Director’s Decision

7.The Director had rejected her torture claim. Therefore, 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”); and

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”).

8.By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed her claim. In summary, the Director found that: there was no real and personal risk that the applicant would be harmed or killed when taking into account the nature, intensity and frequency of past ill-treatment [15]; state protection was available and the applicant would be afforded reasonable protection by the authorities [16]; and internal relocation alternatives were available and not unduly harsh [17].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 21 March 2019, the Board conducted an oral hearing for her appeal, during which the applicant gave evidence, confirmed the facts in her Non-refoulement Claim Form and her interview in relation to the Director’s Decision, and answered questions the Board put to her to further clarify the facts of her case [3]. The applicant admitted to the Board that “Now I am not really concerned about my ex-husband” [26].

10.Having considered the evidence, the Board found that the whole basis of her claim was her fear of harm from her ex-husband and if she was not really concerned anymore, there was no basis to her claim [26]. In any event, the Board reviewed the country of origin information and was satisfied that the Indonesian government had taken steps to provide assistance and protection for women in need and state protection was available [31-32]; and internal relocation was available [33, 42]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed her appeal and confirmed the Director’s Decision.

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

11.The applicant has filed Form 86 dated 30 August 2019 for leave to apply for judicial review of the Board’s Decision.

12.In the applicant’s affirmation in support of her application, the applicant deposed that she was not satisfied with the Board’s Decision but no valid grounds were put forward.

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 Decisions 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 raised no valid ground to challenge the Board’s Decision.

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

The applicant was unrepresented and did not appear.