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

HCAL 2622/2019

[2025] HKCFI 1853

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2622 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 30 August 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 11 April 2025. I shall deal with her application on the papers.

The applicant

3.The applicant, aged 40, is a national of Indonesia. The applicant last arrived in Hong Kong on 19 May 2017 as a domestic helper but when her employment contract was prematurely terminated, she overstayed since 30 September 2018. 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 mother’s creditor and/or his people.

5.According to the applicant, the applicant’s father was seriously injured in an accident and could not work. He borrowed 50 million Rupees from a loan shark for medical expense. The loan shark demanded repayment and proposed to marry her for the debt. She refused and struggled with the loan shark. As a result, she grabbed a pair of scissors and stabbed on his arm. He left. He threatened to kill her because his arm was inflected and amputated. She came to Hong Kong to work as a domestic helper.

6.Details of her claim are set out at paragraph 6 of the Notice of Decision dated 29 May 2019 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 applicant was only physically harmed on a single occasion where she refused to marry the creditor, and the conflict was private in nature [12-13]; state protection was available [14-17]; and internal relocation alternatives were available, not unduly harsh and reasonable [18-22].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 19 August 2019, the Board conducted an oral hearing for her appeal. At the hearing, the applicant confirmed that she never complained to the police or other authorities about the creditor [41].

10.Having considered the evidence, the Board found that the applicant failed to substantiate her claims under all applicable grounds [94, 100, 106-107, 112]. In any event, the Board was satisfied that state protection was available [87-88, 95]. In conclusion, the Board held that 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, through her former solicitors, Choy Yung & Co. Solicitors, filed Form 86 on 4 September 2019 for leave to apply for judicial review of the Board’s Decision. The applicant has raised her grounds that:

(1) the Board had unlawfully fettered its discretion;

(2) the Board was unreasonable and was in breach of procedural fairness; and

(3) the Board failed to meet the greater care and duty owed to a self-represented claimant.

12.In the applicant’s affirmation in support of her application, she exhibited the Board’s Decision and repeated the grounds to her bare assertions without providing any details or particulars.

13.On 19 September 2019, the applicant filed a Notice to Act in Person.

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.

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.Those grounds under paragraph 11 are bare assertions without any evidence in support. They are not valid 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 was unrepresented and did not appear.