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

HCAL 2578/2019

[2025] HKCFI 864

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2578 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 2 July 2019 of the Torture Claims Appeal Board (“the Board’s Decision).

2.The applicant requested an oral hearing. She appeared before the Court on 19 February 2025.

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, is a national of Indonesia. She last arrived in Hong Kong on 27 June 2014 as a domestic helper but when her contract was terminated prematurely, she overstayed since 31 August 2015. On 30 November 2015, the applicant was arrested for overstaying and was sentenced to four weeks’ imprisonment suspended for three years. She subsequently lodged her non-refoulement claim. Her claim was based on her fear of being harmed or killed by a loan shark because she was unable to settle a loan incurred by her parents.

5.According to the applicant, there were three incidents where the loan shark and his gang demanded repayment of the debt, and that the loan shark had taken away his father’s land certificate. The loan shark has since occupied the house. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 28 September 2018 by the Director (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 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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director assessed the applicant’s claim and dismissed her claim. In summary, the Director found that the absence or low intensity and frequency of past ill-treatments is indicative of a small future risk of harm [12]; state protection was available and the applicant would be afforded reasonable protection by the authorities [13-17]; and internal relocation alternatives were available, not unduly harsh and reasonable [18-20].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 5 March 2019, the Board conducted an oral hearing for her.

9.Having considered the applicant’s evidence, the Board found that the applicant’s circumstances surrounding the delay by the applicant in seeking protection in Hong Kong and the explanation for the delay to be unconvincing [88]. The Board also found inconsistencies in relation to aspects of the applicant’s claims and did not accept the applicant as a ‏credible witness [89-97]. In any event, the Board was satisfied that state protection was available based on the Country of Origin Information [78] and that internal relocation was available and reasonable [79]. 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

10.The applicant has filed Form 86 dated 4 September 2019 for leave to apply for judicial review of the Board’s Decision.

11.In the affirmation in support of her application, the applicant said that the Board had disregarded her dangerous situation, but she did not provide any particulars.

DISCUSSION

12.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).

13.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that she did not mean the Board was wrong.

14.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.”

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

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

DISPOSITION

17.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.