EVI GIATRI v. TORTURE CLAIMS APPEAL BOARD

HCAL 2153/2023

[2025] HKCFI 276

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2153 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 30-year-old national of Indonesia who last arrived in Hong Kong on 8 January 2020 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 8 January 2022 or within 14 days of its early termination, but when her employment was prematurely terminated on 31 August 2020, she did not depart and instead overstayed, and was arrested by police on 20 November 2020. 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 father who had been abusive towards her and/or her uncle who had tried to rape her in the past. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Onko, Sumbawa, NTB, Indonesia essentially by her father after her mother passed away when the Applicant was only 8 months old, during which she had often been ill-treated by her father whenever he was drunk or lost his temper, while her paternal uncle who also lived in the same village had tried to rape her when she was a teenager.

3.  In order to save herself from such threats and abuses from her father and uncle, the Applicant in 2017 left the country to work in Singapore as a domestic servant, and in 2019 she came to Hong Kong to work as a foreign domestic helper, and during which when she returned to Indonesia for her holidays she would stay with her friends instead of returning to her home in Sumbawa for fear of her father and uncle.

4.  However, when her last employment in Hong Kong was prematurely terminated on 31 August 2020, she was afraid to return to Indonesia and therefore overstayed in Hong Kong, and after her subsequent arrest she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 9 July 2021 and attended screening interview before the Immigration Department with legal representation.

5.  By a Notice of Decision dated 11 October 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 father or her uncle 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 either of them to seriously harm or kill her or to still have any adverse interest in her after all these years since she left the country, that in any event these were private domestic disputes between them within their family 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 father or uncle to locate her.

7.  On 22 October 2021 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 12 July 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 28 November 2023, her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board accepted the Applicant’s claim of fear of harm from her father and her uncle but found no reliable evidence of any real intention of either of them to seriously harm or kill her, and that in any event these were private domestic disputes between them within their family only without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia as well as support and assistance from various governmental departments and NGOs if needed, and that reasonable internal relocation alternatives are also available for her to move safely to other parts of the country away from her home district without any risk of being located by her father or her uncle that her claim for non-refoulement protection failed on all applicable grounds.

9.  On 1 December 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation she put forward the following grounds for her intended challenge:

(1)  Procedural impropriety in failing to consider the concept of extended state acquiescence in her claim;

(2)  Procedural impropriety in failing to conduct sufficient inquiry into the relevant COI;

(3)  Error/Misdirection in law in failing to take into account or consideration of the psychological harm by the multiple death threats against her;

(4)  Error/Misdirection in law for the incorrect examination of the facts in relation to legal principles where the Applicant was required to exhaust all avenues when reporting public misconduct and/or corruption;

(5)  That there was insufficient basis to conclude that the Applicant has not made out her claim for non-refoulement protection;

(6)  Procedural impropriety in failing provide adequate reasons for assessment;

(7)  Procedural impropriety in law in failing to properly examine the Applicant’s case.

10.  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 details or particulars or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or why is the concept of extended state acquiescence relevant to her claim or in what way did the Board fail to conduct proper or sufficient inquiry of her claim or the relevant COI or to give reasons for its assessment. As none of these assertions were properly elaborated by the Applicant with the necessary or relevant details or particulars in support that I do not find any of them reasonably arguable for her intended challenge, 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 merits in her intended application either.

11.  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.

12.  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 risks 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.

13.  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.

14.  Moreover, the Applicant recently on 5 November 2024 filed an affirmation requesting to withdraw her application because her dependent visa in Hong Kong has been granted and that it is now safe for her to return to her home country.

15.  In the premises, and 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 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