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

HCAL 2893/2019

[2025] HKCFI 2616

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2893 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 26 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 31 March 2025. I shall deal with her application on the papers.

The applicant

3.The applicant, aged 44, is a national of Indonesia. The applicant last arrived in Hong Kong on 9 March 2018 as a domestic helper, but when her contract was terminated prematurely, she overstayed since 14 February 2019. 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 brother and father.

5.According to the applicant, she was threatened by her brother when there was knowledge that her father put her brother’s name as the only owner in the title deeds and she was assaulted by her brother for 30 minutes in an unknown place.

6.Details of her claim are set out at paragraph 6 of the Notice of Decision dated 31 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 absence or low intensity and frequency of past ill-treatments is indicative of a small future risk of harm, the assertion was too far-fetched, and the dispute is localised [12-15]; state protection was available and the applicant would be afforded reasonable protection by the authorities [16-20]; and internal relocation alternatives were available, not unduly harsh and reasonable [21-25].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 22 August 2019, the Board conducted an oral hearing for her appeal, during which the applicant confirmed the truth and correctness of all the evidence [11].

10.Having considered the evidence, the Board found that the applicant would not behave like a Christian in Indonesia, and therefore would not be genuine or substantial risk [37, 39, 41, 45]. In any event, the Board was satisfied that internal relocation was not too harsh [71-73]. 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 has filed Form 86 dated 2 October 2019 for leave to apply for judicial review of the Board’s Decision.

12.In the applicant’s affirmation dated 30 September 2019 in support of her application, the applicant included grounds which are summarized as follows: there was insufficient time to prepare for the hearing due to her limited skills in English and being unrepresented, and the Board’s Decision significantly relied on the source of news which is not officially recognized or is simply hearsay. These grounds were the applicant’s bare assertions without any details or particulars.

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.

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.The Court received a letter from the applicant, saying that she did not appear before the Court because she forgot the hearing. She also gave her address in Jordan Kowloon. I have checked the court’s notice of hearing. It was sent to the same address. I consider that the applicant has to bear the consequences for her own fault. I therefore invited her to make further written submissions to the Court by letter dated 3 April 2025. Up to date, I have not received any further submissions from the applicant. I shall therefore deal with the application on the evidence and materials before me.

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 was unrepresented and did not appear.