ATIK SUSANTI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1951/2023

[2025] HKCFI 1314

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1951 OF 2023

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 Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 45-year-old national of Indonesia who last arrived in Hong Kong on 18 March 2019 with permission to continue 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 13 January 2021, she did not depart and instead overstayed, and some 7 months later on 27 August 2021 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 former husband for divorcing him. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Jepara, Central Java, Indonesia. After leaving school she married her husband and raised a family with a child in her home district.

3.  As her husband was often lazy to work and was always in debts, the Applicant in 2010 started to work in Saudi Arabia and Singapore as a domestic helper to help support her family, and in 2015 she started coming to Hong Kong to work as a foreign domestic helper.

4.  In 2019 the Applicant applied and obtained a divorce against her husband without informing him, and several months later her husband called her on the phone and angrily confronted her for divorcing him without his consent, and threatened to kill her when she returned to Indonesia.

5.  As a result the Applicant ceased all further contact with her former husband, but when her last employment was terminated on 13 January 2021, she was afraid to return to Indonesia and therefore overstayed in Hong Kong, and subsequently raised her non-refoulement claim for protection to the Immigration Department, for which she completed a Non-refoulement Claim Form (“NCF”) on 18 October 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 4 November 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by her former husband upon her return to Indonesia due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her former husband to seriously harm or kill her other than some angry words and empty threats uttered in one telephone call between them in 2019, that in any event it was a private marital 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 279 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 Surabaya or Jakarta where it would be difficult if not impossible for her former husband to locate her.

8.  On 11 November 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which she failed to attend the scheduled oral hearing on 21 February 2023 before the Board without explanation, nor did she subsequently reply or respond to the Board’s enquiry for her absence or to request for any further hearing for her appeal, whereupon the Board proceeded to deal with her appeal in her absence and on papers. On 3 April 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board did not take any issue with the Applicant’s claim of her dispute with her former husband over their divorce but found no reliable evidence of any real intention of her former husband to seriously harm or kill her other than some angry words and empty threats, and that in any event it was a private marital dispute between just the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her former husband that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 31 October 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation in which she just stated that she rejects the decision as it disregarded her dangerous situation but without providing any necessary or relevant details or particulars or elaboration as to how it did so.

11.  By then the Applicant was also out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

12.  As the last day of the three-month period for her to file her Form 86 fell on 3 July 2023, the Applicant was therefore almost 4 months late with her application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13.  In the Applicant’s case, a delay of almost 4 months must be considered as very substantial and inordinate, for which she did not provide any explanation or reasons in her Form or affirmation, I am unable to see any good or valid reason for her such serious delay.

14.  As for the merits, if any, of her intended application, as noted above that the Applicant has also failed to put forth any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in her intended application either.

15.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

16.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.  Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

18.  Furthermore, the Applicant recently on 15 January 2025 filed an affirmation and also in writing requested to withdraw her application as her problem in her home country has been resolved that she now wants to return to Indonesia as soon as possible.

19.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation of no problem for her to return to her home country, I accordingly dismiss her leave 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