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

HCAL 3009/2019

[2025] HKCFI 1698

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3009 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 3 October 2019 of the Torture Claims Appeal Board (“the Board’s Decision).

2.The applicant requested an oral hearing. She appeared before the Court on 11 April 2025.

The applicant

3.The applicant, aged 45, is a national of Indonesia. She was a domestic helper and was allowed to stay in Hong Kong until 27 May 2015. She overstayed. On 3 June 2015, she was arrested by police. She lodged her non-refoulement claim on the basis that, if refouled, she will be harmed or killed by her husband because she failed to pay his loans from the creditor.

4.According to the applicant, her husband admitted to her that he had borrowed around 15 million Indonesian currency from a loan shark, naming her as his guarantor. He was unable to repay the loan. The creditor had come to her house and demanded payment of the debt. They threatened to kill her if she did not do so. Her husband had also threatened to kill her if she did not repay the loan for him. She therefore came to Hong Kong.

The Director’s Decision

5.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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) there was no substantial ground to believe the claimed future risk of harm by her husband and his creditor if she returns to Indonesia; (ii) state protection will be available; and (iii) internal relocation is viable. [13]-[15]

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 23 January 2019, the Board conducted an oral hearing for her.

8.Having considered the applicant’s evidence, the Board came to the conclusion below.

(1)  It was not satisfied that the applicant had provided a credible account of her circumstances and fears of returning to Indonesia. [45]

(2)  The Board did not accept that her husband had borrowed money from a loan shark at any time, named her as the guarantor of the loan or threatened to kill her if she failed to repay it. [46]

9.For the above reasons, the Board dismissed her appeal.

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 14 October 2019 for leave to apply for judicial review of the Board’s Decision.

11.The applicant has not raised any specific ground to challenge the Board’s Decision.

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 consider the Board was wrong in its decisions.

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.