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

HCAL 1055/2025

[2025] HKCFI 4624

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1055 of 2025

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 28 April 2025 of the Torture Claims Appeal Board (“the Board’s Decision).

2.The applicant did not request an oral hearing.

The applicant

3.The applicant is a national of Indonesia. She came to Hong Kong as a visitor on 7 July 2024. She overstayed and was arrested by police on 23 September 2024. She lodged a non-refoulement claim with the Immigration Department.

4.The applicant’s claim was based on her fear of being harmed or killed by a creditor as she failed to repay her debt.

5.According to the applicant, she had borrowed a loan of 100 million Indonesian Rupiah from her creditor. She was unable to repay. However, the creditor did not harm her or her family.

6.Details of her claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001055_2025_files/the_Board's_Decision.pdf.

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 Notice of Decision dated 13 January 2025 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 19 March 2025, the Board conducted an oral hearing for her. She had given oral evidence and answered the Board’s questions.

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

(1)  She was never in direct physical contact with the creditor since her default in repayment.

(2)  The only direct threat from her creditor was the phone call in 2016.

(3)  She was not directly threatened by her creditor after the above phone call.

(4)  She was able to travel in and out of Indonesia without difficulty from 2019 up to 2024 (when she worked as a domestic helper in Hong Kong as well as Macau).

(5)  The creditor did not harm her family member nor cause any damage to their property. [21]

(6)  Internal relocation is viable in cities such as Jakarta or Bali. [44]

(7)  State protection is available to her. [63]

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

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

12.The applicant has filed Form 86 dated 6 May 2025 for leave to apply for judicial review of the Board’s Decision.

13.The applicant has not raised any specific ground to challenge the Board’s Decision. She only requested a chance to talk to the adjudicator.

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.The applicant has raised no valid ground to challenge the Board’s Decision. This Court has no power to order the adjudicator to meet her again. She has not given any valid reason for her request.

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.

Dated the 16^th day of October 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