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

HCAL 324/2025

[2025] HKCFI 2170

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 324 OF 2025

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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 16 December 2024 of the Torture Claims Appeal Board (“the Board’s Decision).

2.The applicant did not request an oral hearing. I shall deal with her application on the papers.

The applicant

3.The applicant, aged 59, is a national of Indonesia. The applicant last arrived in Hong Kong on 14 February 2003 as a domestic helper but when her contract was completed, she overstayed since 2 April 2004 and was arrested on 3 January 2024. 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 husband.

5.According to the applicant, she was threatened by her husband with death in 1997 when she told him to surrender to the police and stop as her husband was selling dangerous drugs. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 21 August 2024 by the Director (the “Director’s Decision”).

The Director’s Decision

6.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”).

7.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 perceived risk of harm was not as serious or imminent as there was no sufficient evidence to show that the husband had any reason or intention to inflict any serious harm or kill the applicant, and the claimed level of risk of harm was assessed to be low [12-18]; state protection was available and the applicant would be afforded reasonable protection by the authorities [19-26]; and internal relocation alternatives were available, not unduly harsh and reasonable [27-30].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 2 October 2024, the Board conducted an oral hearing for her appeal, during which the applicant confirmed the truth and correctness of all the evidence in the hearing bundle and that there were no additional statement or documents [45-49].

9.Having considered the evidence, the Board accepted the applicant’s version that she received threats from her husband [62]. However, it was not accepted that there was any substantial risk or any substantial basis of fear that the applicant would be subjected to any serious harm or ill-treatment [68-76]. In any event, the Board was satisfied that state protection was available based on the objective Country of Origin Information [77-98] and that internal relocation was available and reasonable [89-96]. 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

10.The applicant filed Form 86 on 4 February 2025 for leave to apply for judicial review of the Board’s Decision. The applicant did not put forth any valid grounds for her application.

11.In the applicant’s affirmation in support of her application, the applicant exhibited the Board’s Decision and deposed that her life was still in danger but no valid grounds were put forward.

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.

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 was unrepresented.