Siti Nurholipah Bt Suyanto Kasiyo v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2608/2019

[2025] HKCFI 866

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2608 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 22 August 2019 of the Torture Claims Appeal Board (“the Board’s Decision).

2.The applicant requested an oral hearing. However, she was absent at the hearing on 19 January 2024. 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 41, is a national of Bangladesh. She last arrived to Hong Kong on 27 March 2016 as a domestic helper but when her contract was terminated prematurely, she overstayed since 7 June 2016. On 18 August 2018, she lodged her non-refoulement claim.

5.The applicant’s claim was based on her fear of being harmed or killed by her ex-husband and uncle and that state protection was not available to her.

6.According to the applicant, she had an intimate relationship with her uncle for 2 years, and was threatened by her uncle if she ever disclosed their relationship. Her uncle then arranged for the applicant to marry her ex-husband in 2013. She confessed to having been raped by her uncle. The ex-husband was disappointed and decided to divorce her. She has since been threatened by her uncle and she was told that her family was very angry with her. Details of her claim are set out in Chinese at paragraph 6 of the Notice of Decision dated 11 June 2018 by the Director (the “Director’s Decision”).

The Director’s Decisions

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 assessed the applicant’s claim and dismissed her claim. In summary, the Director found that: considering the evidence as a whole, the future risk of harm was assessed to be low [10-16]; state protection was available and the applicant would be afforded reasonable protection by the authorities [17-21]; and internal relocation alternatives were available, not unduly harsh and reasonable [22-23].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 22 May 2019, the Board conducted an oral hearing for her. The applicant explained that her uncle was holding a knife when he requested for sex and she reported the matter to police but they did not take up her case [24].

10.Having considered the evidence, the Board found that the applicant’s claims were vague and incredible, and found the applicant inconsistent such as her confirmation to the Director that she had not reported the matter to police yet having stated that she did report to police before the Board [68]. The Board also did not understand why her ex-husband would have kept administering death threats after already having been divorced [58-74]. In any event, the Board was satisfied that state protection was available based on the Country of Origin Information [51-55, 82].

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 9 September 2019 for leave to apply for judicial review of the Board’s Decision.

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

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 Decisions 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.

The applicant was unrepresented and did not appear.