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

HCAL 2467/2024

[2025] HKCFI 1642

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2467 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 25 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 7 April 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 last arrived in Hong Kong on 11 May 2023 as a domestic helper but was arrested on 28 May 2024 when she took up unapproved employment. In due course, she lodged her non-refoulement claim.

5.The applicant’s claim was based on her fear of being harmed or killed by debt collectors due to a loan dispute.

6.According to the applicant, the applicant and her family was threatened by her debt collectors but they were not physically harmed. Because of the loan, her late ex-husband’s family requested a divorce with the applicant. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 29 August 2024 by the Director (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 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 and not imminent or substantial [12-18]; state protection is available and the applicant will be afforded reasonable protection by the authorities [19-27]; and internal relocation alternatives are available, not unduly harsh and reasonable, if she returns to Indonesia. [28-30]

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 19 November 2024, the Board conducted an oral hearing for her appeal, assisted by an interpreter [8]. At the hearing, the applicant confirmed the truth and correctness of the materials and adopt the same as evidence in the appeal [12].

10.Having considered the evidence, the Board found that the applicant failed to substantiate her claims under all applicable grounds [63, 65, 70, 79]. In any event, the Board was satisfied that state protection was available based on the Country of Origin Information [27-29, 53-56] and that internal relocation was available and reasonable [80-88]. 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 filed the Form 86 on 13 December 2024 for leave to apply for judicial review of the Board’s Decision but did not include any ground.

12.In the applicant’s affirmation in support of her application, the applicant exhibited the Board’s Decision and deposed that the Board reached the wrong decision but without providing any details or particulars to her bare assertions.

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. Before me, the applicant said that the Board should re-consider her evidence and asked the Court to review the Board’s Decision.

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

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 appeared in person.