HASAN BESARI WIDIYA LESTARI v. TORTURE CLAIMS APPEAL BOARD

HCAL 2218/2019

[2025] HKCFI 1832

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2218 OF 2019

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 53-year-old national of Indonesia who last arrived in Hong Kong on 21 June 2009 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 after she completed her last employment contract on 22 December 2010, she did not depart and instead overstayed, and more than 6 months later on 15 July 2011 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 the creditors of her former husband over his unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

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

3.  In 1998 the Applicant started to come to Hong Kong to work as a foreign domestic helper to help support her family due to her husband’s limited income, returning to Indonesia to visit her family only in holidays.

4.  However, during one of her such visits in 2009, some men claimed to be her husband’s creditors came to her home pressing her husband to repay his debts, and when they found out that she was his wife working in Hong Kong, they also demanded that she should help her husband to repay his debts, and threatened to kill her if she failed to do so.

5.  As a result the Applicant left the country to return to Hong Kong to continue with her employment, but later in November of the same year when her husband passed away without paying off his debts, and fearing that his creditors would instead go after her for repayments of his debts, the Applicant was therefore afraid to return to Indonesia after completing her last employment on 22 December 2010, and instead overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 17 November 2017 and attended screening interview before the Immigration Department with legal representation.

6.  By a Notice of Decision dated 27 December 2017 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 husband’s creditors upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her other than to press her to repay her former husband’s debts, that in any event it was a private monetary dispute between her and her former husband’s creditors 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 255 million people spread across a vast territory 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 anyone to locate her.

8.  On 8 January 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 29 January 2019 with her lawyer before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board and with submission made on her behalf by her lawyer. On 3 June 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board accepted the Applicant’s claim of fear of harm from her deceased husband’s creditors but found no reliable evidence of any real intention of them to seriously harm or kill her other than to press her to repay his debts, and that in any event it was a private monetary dispute between her and her deceased husband’s creditors 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 anyone that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 5 August 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward various grounds for her intended challenge, of which she confirmed at the hearing as follows:

(1)  That the Board erred in law in its findings about the Applicant’s case by failing to properly consider all the relevant COI or her evidence in support of her claim;

(2)  That the Adjudicator failed to properly consider the Applicant’s subjective fear or the insufficiency of state protection and the state acquiescence in the loan sharks’ threat to beat her for failing to repay her late husband’s loans when such threats would be within the definition of torture causing her to flee from her country since 2009;

(3)  That the Adjudicator wrongly found the Applicant’s evidence to be not credible by placing too little weight on it in the assessment of the credibility of her claim;

(4)  That the Adjudicator was wrong in not properly consider the Applicant’s subjective fear by taking into account of the insufficiency of state protection and state acquiescence in the loan sharks’ threats to the Applicant in considering that those threats did not come within the definition of torture.

11.  These are however all just 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 irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was state acquiescence to the Applicant’s case when on the factual basis of even her own case that it was a private monetary dispute between her and her deceased husband’s creditors only without any official involvement or political element at all and that the Board never took any credibility issue as regard her claimed fear of harm from those creditors in the determination of her claim. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, 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 fact is that it has been established by both the Director and the Board in their respective decisions 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 him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.  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.

15.  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