Yenni Antika Wulandari v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2870/2019

[2025] HKCFI 1533

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2870 OF 2019

_____________

BETWEEN

_____________

_______________

J U D G M E N T

_______________

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 22 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. She appeared before the Court on 31 March 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 42, is a national of Indonesia. She came to Hong Kong as a domestic helper in 2004. Her employment contract was prematurely terminated on 10 May 2014. She overstayed since 25 May 2014 and was arrested by the Immigration Department on 19 August 2014. She was convicted and sentenced. A Removal Order was issued against her on 6 November 2014. She raised her non-refoulement claim by written representations on the basis that, if refouled, she will be harmed or killed by her family due to her conversion from Islam to Christianity.

5.This Court notes that the Board’s Decision states that she is fearful of her husband and his brother because she has not provided them with money to meet their financial commitments. See paragraph 26 of the Board’s Decision. This is not found in the Director’s Decision. However, the Board mainly dealt with the applicant’s conversion of religion in the Board’s Decision. This may be the applicant’s added ground before the Board. Even if this was an error on the part of the Board on the grounds in support of her application, the Board’s Decision has appropriately dealt with her appeal against the Director’s Decision.

6.According to the applicant, she was born into an Islam family. Somehow, she converted into Christianity in 2009. She considered that she would be ostracized by her family and the society. Therefore she came to Hong Kong to work as a domestic helper. She had a relationship with a Hong Kong resident and they have a 10-month old child. Her boyfriend is processing divorce with his wife. In support of her application, she told the Board that her experience in her country is that those who had converted to Christianity had been killed. Details of her story is set out in paragraph 8 of the Notice of Decision dated 13 November 2018 (“the Director’s Decision”).

The Director’s Decision

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 dismissed the applicant’s claim. The Director found that: (i) the absence of past ill-treatment from her family indicates that the future risk of being harmed or killed by her family upon her return to Indonesia is not likely to materialize; (ii) state protection will be available; and (iii) internal relocation is viable. [13] - [20].

The Board’s Decision

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

10.Having considered the applicant’s evidence, the Board came to the facts below.

(1) The applicant’s credibility was called in question as she only had very little knowledge or experience of Christian religious practice and the Board found that her original claims were substantially exaggerated. [71]

(2) The Board did not accept that she will be expelled by her family if she returns to Indonesia. [75]

(3) Though the applicant has raised 2 examples of Indonesian converts had been killed, the Board found that there is only a remote possibility that the applicant will have such risks herself. [76]

(4) Consequentially, the Board did not accept that the applicant will have any realistic risk of being harmed if she returns to Indonesia. [77]

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

13.The applicant has raised no 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. Before me, she said that the Board was wrong because it did not consider her situation and she wanted the Court to review the Board’s Decision.

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 Board had considered her situation as shown in the Board’s Decision. 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 appeared in person.