NUR-ASIAH-BT-MURMIN-DARTIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 613/2021

[2025] HKCFI 6192

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 613 OF 2021

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Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 44-year-old national of Indonesia who arrived in Hong Kong on 25 September 2015 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment was prematurely terminated on 29 January 2018, she did not depart and instead overstayed, and some 2 ½ years later on 12 August 2020 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Indonesia she would be harmed or killed by her creditor for failing to repay her debts.  She was subsequently released on recognizance pending the determination of her claim.  

2.  The Applicant was born and raised in Desa Guci, Kec. Godong, Kab. Grobogan, Semarang, Jateng, Indonesia.  After leaving school she married her husband and raised a family with 2 children in her home district.

3.  In 2014 in order to meet some unexpected family expenses she borrowed a loan from a local money-lender with monthly interests payments which she intended to repay by applying to work in Hong Kong as a foreign domestic helper, and which she did in September 2015 when she arrived in Hong Kong to start her first employment contract.

4.  However, when her last employment was prematurely terminated in January 2018, she was without income to repay her loan, and when her creditor started to make threats against her, she was afraid to return to Indonesia and therefore overstayed in Hong Kong, and more than 2 years later she surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 5 March 2021 and attended screening interview before the Immigration Department with legal representation.  

5.  By a Notice of Decision dated 28 April 2021 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her creditor upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from her creditor, that there is no evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, that in any event it was a private monetary dispute between just the 2 of them only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Indonesia with a large population of 275 million people spread across a vast territory of more than 1.9 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her creditor to locate her.

7.  The Applicant never lodged any appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision under Section 37ZR (b) of the Immigration Ordinance, and instead on 3 May 2021 filed a Form 86 for leave to apply for judicial review of the Director’s decision, and no ground for seeking relief was given in her Form or her supporting affirmation of the same date to which she just attached a copy of the Director’s decision, nor was she able to explain at the hearing of her application why she had not first sought any appeal to the Board despite being advised by the Director at the conclusion of his decision to do so if she felt aggrieved by the decision.

8.  As such, and in the absence of any appeal by the Applicant to the Board under the said Section 37ZR (b) of the Ordinance and without having first undergone the second-tier of the screening process of her non-refoulement claim before the Board under the Unified Screening Mechanism (“USM”), I do not find any legal or procedural basis for her to now apply for judicial review of the Director’s decision, I therefore refuse to grant leave and accordingly dismiss her application.

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