WELASASIH v. TORTURE CLAIMS APPEAL BOARD

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

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

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of Indonesia who last arrived in Hong Kong on 7 November 2018 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 10 May 2020 or within 14 days of its early termination, but when her employment was prematurely terminated on 10 February 2019, she did not depart and instead overstayed, and was arrested by police more than 2 years later on 26 December 2021.  After she was referred to the Immigration Department for investigation, 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 creditor for failing to repay her debts.

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

3.  In 2009 she started to work as a domestic helper in Singapore and Taiwan before coming to Hong Kong in 2012 to work as a foreign domestic helper.

4.  In 2017 when she returned to Indonesia for holiday, and in order to help her mother to pay for her medical expenses, the Applicant borrowed a loan from a local money-lender repayable by monthly instalments which she managed to make from her salaries upon her return to work in Hong Kong.  

5.  However, after her last employment was prematurely terminated on 10 February 2019, she was without money to repay her debts, whereupon her creditor made threats against her, and so she was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 4 April 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.  By a Notice of Decision dated 26 April 2022 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 creditor and followers upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from them, 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 her and her creditor 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 277 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 or Surabaya where it would be difficult if not impossible for her creditor to locate her.

8.  On 6 May 2022 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 5 December 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 15 December 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1] 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 any creditor over any debts that caused her to overstay in Hong Kong to seek protection, that her credibility was further undermined by her failure to raise her claim until her arrest more than 2 years after the termination of her last employment, that even if her account of having borrowed money from some money-lender who had subsequently threatened her over her outstanding debts were true that there was no reliable evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, and that in any event it was a private monetary dispute between her and her creditor 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 creditor that her claim for non-refoulement protection failed on all applicable grounds.    

10.  On 29 December 2022 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 the following grounds for her intended challenge:

(1) Procedural impropriety in the Board’s failure to consider her non-refoulement claim properly;

(2) That the Board failed to consider the fear that the Applicant stated in her claim that she cannot return to her home country where she would face real risk upon her refoulement;

(3) That the Board failed to consider the fact raised in her claim by looking into the relevant COI.          

11.  These are however just some bare and vague assertions of the Applicant without any necessary or relevant 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.  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 even 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.                

14.  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.  Moreover, the Applicant recently on 9 December 2025 in writing requested to withdraw her application as her problem in her home country has been resolved that it is now safe for her to return to Indonesia.

16.  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 that it is safe 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