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

HCAL 3310/2019

[2025] HKCFI 3643

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3310 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 30 October 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 16 July 2025. I shall deal with her application on the papers.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant, aged 45, is a national of Indonesia. She is an illegal immigrant. She worked as a domestic helper, but she did not depart and overstayed after her employment contract terminated. Police arrested her for an offence of theft, for which she was convicted and sentenced to one month’s imprisonment. She lodged a non-refoulement claim to the Director of Immigration (“the Director” on the basis that, if refouled, she will be harmed or killed by the creditors because she was unable to repay her husband’s loan and her own loan.

5.Her husband had borrowed money from a loan shark for his drinking and gambling habits. She had no idea of how much the loan was. Her husband was unable to repay his debt and left home. The creditor came to her house for repayment of her husband’s loan. She was unable to settle the debt. The loan shark threatened to kill her. Also, she had borrowed another loan from another moneylender for her father’s medical expense. She was unable to pay her debt. The moneylender came to her house, took away the land document and demanded her to pay the balance as the value of the land was insufficient to repay the loan. She was unable to pay and the moneylender threatened to kill her.

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 Notice of Decision dated 28 November 2018 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, the Director found that state protection will be available and internal relocation is viable, which will mitigate or neutralize the applicable risks.

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 3 May 2019, the Board conducted an oral hearing for her. The applicant had given oral evidence before the Board and answered the Board’s questions.

9.Having considered the applicant’s evidence, the Board did not accept that she has to take responsibility for her husband’s debt. The Board did not accept she had borrowed money from another moneylender. The Board therefore did not accept her evidence on the facts of her claim. It found that she is not under any real risk of harm if she returns to Indonesia. See the Board’s Decision through hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003310_2019_files/the_Board's_Decision.pdf.

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

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

11.The applicant has filed Form 86 dated 6 November 2019 for leave to apply for judicial review of the Board’s Decision.

12.The applicant has not raised any specific reason to challenge the Board’s Decision.

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 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.

Dated the 28^th day of August 2025

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1