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

HCAL 2639/2024

[2025] HKCFI 1488

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2639 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 Decision dated 21 November 2024 of the Torture Claims Appeal Board (“the Board’s Decision).

2.The applicant requested an oral hearing. She appeared before the Court on 31 March 2025.

The applicant

3.The applicant, aged 34, is a national of Indonesia. She last arrived to Hong Kong on 17 April 2021 as a domestic helper but when her contract was terminated prematurely, she overstayed since 7 January 2022. In due course, she lodged her non-refoulement claim.

4.The applicant’s claim was based on her fear of being harmed or killed by her husband.

5.According to the applicant, she was threatened by her husband as she was unable to send money to him and when the applicant proposed to divorce, the husband became angry and threatened to kill her if she returns to Indonesia. Details of her claim are set out in Chinese at paragraph 6 of the Notice of Decision dated 15 September 2022 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 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 [12-15]; state protection was available and the applicant would be afforded reasonable protection by the authorities [16-20]; and internal relocation alternatives were available, not unduly harsh and reasonable [21-23].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 28 October 2024, the Board conducted an oral hearing for her with an interpreter.

9.Having considered the evidence, the Board found that the applicant failed to establish that there were substantial grounds for believing she would be subject to any of the risks under the applicable grounds [55, 57, 58], and that this was only a case of domestic dispute [60]. In any event, the Board was satisfied that internal relocation was a viable option [62-66] 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 27 December 2024 for leave to apply for judicial review of the Board’s Decision.

11.In the applicant’s affirmation in support of her application, the applicant exhibited the Board’s Decision and deposed that her life is in danger but no valid grounds were put forward.

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 think 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.In my view, the Board was entitled to come to its views above.

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 appeared in person.