Carneti Bt Ino Jenggot v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3020/2019

[2025] HKCFI 1855

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3020 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 20 September 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 13 April 2025. I shall deal with her application on the papers.

The applicant

3.The applicant, aged 40, is a national of Indonesia. She worked as a domestic helper in Hong Kong. Her employment was terminated on 13 September 2018. She did not depart and overstayed since 28 September 2018. On 14 February 2019, she was arrested by police and referred to the Immigration Department. She lodged her non-refoulement claim by written representations on the basis that, if refouled, she will be harmed or killed by (i) her husband Tony who lent her family money but harmed her after marriage and (ii) her brother Supardi as his daughter was dead in an traffic accident where she was the pillar passenger on a motor bike driven by the applicant.

4.According to the applicant, her mother had borrowed money from Tony for the medical expenses for her father who was suffering from heart disease. She was unable to pay off the debts. At the instigation of Tony, she married him for payment of the debts in late 2014. However, Tony treated her badly and assaulted her from time to time, though the injuries were not serious and they took several days to recover. Three months after their marriage, her father passed away. Tony then brought in 2 women whom he told her were his first wife and second wife and she was his third wife. She disagreed and proposed to divorce him. He was furious and threatened to kill her if she left the house. She left and returned to her maiden home. She was feeling frustrated and she rode a motorbike, with her niece, Supardi’s daughter, as the pillar passenger. In an accident, she had minor injuries herself whereas her niece hit her head on a rock and died. Her brother was furious and hit her badly. He and Tony had even taken her to a small house where she was locked up and assaulted. She managed to leave the house through a window and left Indonesia for Hong Kong to work as a domestic helper. She considers that state protection will not be available and internal relocation is not viable.

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) from her experience, it was not accepted that she would be subjected to any real risk of harm by Tony or her brother if she returned to Indonesia; (ii) state protection would be available; and (iii) internal relocation would be viable. [14]-[36]

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 28 August 2019, the Board conducted an oral hearing for her.

8.Having considered the applicant’s evidence, the Board dismissed her appeal and confirmed the Director’s Decision for the reasons below.

(1)  The Board found that all the core assertions were fabricated or were wholly reliable [57] as the applicant said that the police did not make investigation into her niece’s death before she was buried [50].

(2)  There was no evidence that the state was involved or had acquiesced the alleged ill-treatment of the applicant. [60]

(3)  Internal relocation will be viable if she returns to Indonesia. [69]-[71]

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

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

10.The applicant has raised some grounds in support of her application. However, her complaints solely relate to the Director, whose decisions have been superseded by the Board’s Decision. In any event, those grounds against the Director are her bare assertions without any evidence in support. She has not raised any specific ground to challenge the Board’s Decision.

DISCUSSION

11.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).

12.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

13.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.”

14.The applicant has raised no valid ground to challenge the Board’s Decision.

15.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

16.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.