KHOIRUL NURKHASANAH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1397/2021

[2025] HKCFI 2288

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1397 OF 2021

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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 42-year-old national of Indonesia who arrived in Hong Kong on 6 November 2010 with permission to work as a foreign domestic helper until the expiration of her employment contract on 6 November 2012 or within 14 days of its early termination, but when her employment was prematurely terminated on 30 May 2011, she did not depart and instead overstayed, and some 9 years later on 11 June 2020 she was arrested for overstaying, and was subsequently convicted and sentenced to prison for 8 months. After she was discharged from prison and was referred to the Immigration Department for deportation, she 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 boyfriend for refusing to marry him. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Desa Kanigoro, Kec. Pagelaran, Kab. Malang, Jawa Timur, Indonesia. After leaving school she worked as a domestic helper in her home district, and dated her boyfriend Budi who however ran a business in Kalimantan, and so they only got together a few times each year, but kept in contact by telephone.

3.  In 1999 Budi helped the Applicant’s father to pay off his debts, and for which her father agreed that Budi may marry the Applicant, which Budi promised to do so by end of 2005.

4.  However, in 2005 there was an explosion in Kalimantan caused by some terrorists, and thereafter the Applicant was unable to contact Budi, and in 2006 she heard from a friend that Budi may have been involved in the explosion and was advised to stay away from him for her own safety, but shortly thereafter Budi suddenly came to the Applicant’s home to propose to marry her, and when the Applicant refused as she believed that he was a terrorist and was involved in the explosion in Kalimantan, to which Budi demanded that she must marry him as he had helped her father with his debts, but when the Applicant still refused, Budi became furious and attacked her with a broken bottle which injured her jaw and right hand, and threatened that he would kill her if she still refused next time when he came again to make his marriage proposal.       

5.  After Budi left, the Applicant became fearful for her life and left Indonesia in January 2007 to work in Jordan, and in November 2010 she came to Hong Kong to work as a foreign domestic helper, but after her employment was prematurely terminated on 30 May 2011, she was afraid to return to Indonesia and therefore overstayed in Hong Kong, and after she was arrested some 9 years later in June 2020 and was subsequently sent to prison for 8 months, and upon her discharge from prison and was referred to the Immigration Department for deportation, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 21 December 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.  By a Notice of Decision dated 16 March 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 assessed the level of risk of harm from her former boyfriend Budi upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of Budi to seriously harm or kill her other than some angry words and empty threats or that he would still have any adverse interest in her after all these years since she left the country in 2010, that in any event it was a private relationship 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 270 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 Budi to locate her.

8.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 6 July 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 9 September 2021 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her former boyfriend Budi that caused her to overstay in Hong Kong to seek protection, that her credibility was further undermined by her failure to raise her claim upon first arriving in Hong Kong until years later and only upon her arrest, that even if her claimed fear of harm from Budi were real that there was no reliable evidence of any real intention of him to seriously harm or kill her or that he would still have any adverse interest in her after all these years since she left the country, and that in any event it was a private and personal 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 to negate any such risk that her claim for non-refoulement protection failed on all applicable grounds.    

10.  On 6 October 2021 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward various complaints which can be summarized as follows:

(1) That she does not agree with the Board’s decision as she believes that her case had been determined unfairly;

(2) That she does not speak or read English but the Board delivered its decision in English without providing any language assistance to explain the decision to her so that she could understand the reasons for rejecting her claim or dismissing her appeal which is procedurally unfair to her or that it was wrongful case management on the part of the Board;

(3) That the Adjudicator was biased against the Applicant and made his determination based on many assumptions without allowing her an opportunity to explain or elaborate her claim and without any proper basis to challenge her case on credibility.        

11.  These are however all just some bare and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair, or in what way was the Adjudicator biased against the Applicant or made the determination based on assumptions or fail to take into account of relevant COI, while it is clear that the Applicant was assisted by an interpreter in her appeal hearing before the Board during which she never raised any issue with interpretation, and that she also clearly had legal assistance in her present application when her Form 86 and supporting affirmation were all prepared in English and that she was clearly and fully aware of what the Board had stated in its decision. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, nor was she able to do so at the hearing of her application, I do not find any of them reasonably arguable for her intended challenge.

12.  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.

13.  In the Applicant’s case, the Board rejected her claim for the thorough and detailed analysis and reasoning set out in its decision and with the benefit of hearing her in her oral evidence and answers to questions raised of her claim, and in the absence of any error of law 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 reasonably arguable basis to challenge the findings of the Board.

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

15.  In the premises, and 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.

16.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, 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