EMMA ASMAWATI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1229/2021

[2025] HKCFI 6191

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1229 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 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 43-year-old national of Indonesia who last arrived in Hong Kong on 26 May 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 employment was prematurely terminated on 19 June 2019, she did not depart and instead overstayed, and was arrested by police more than one year later on 2 October 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 parents or their creditor over her parents’ outstanding debts and/or by the villagers from her home village over her sexual orientation.  She was subsequently released on recognizance pending the determination of her claim.  

2.  The Applicant was born and raised as a Muslim in Desa Taman Agung, Kee Karianda, Kab Lampung, Selatan, Sumatra, Indonesia.  After leaving school she worked as a domestic servant in her home district before going to Singapore in 2005 and then Hong Kong in 2007 to work as a foreign domestic helper.

3.  During her employment in Singapore she started to become attracted to females and realized that she is a lesbian but never got involved in any relationship with anyone same sex or otherwise, nor did she inform her parents or anyone of her sexual orientation for fear of being rebuked or harmed by them or her fellow villagers in her home village as they were all Muslims and were against same sex relationship.

4.  In 2016 when she returned to Indonesia for holiday, she was told by her parents that they owed money to a fellow villager but were unable to repay, and for which they suggested to marry her to their creditor in settlement of their debts, and when the Applicant refused, her parents became furious and threatened to kill her, and so she returned to Hong Kong to continue with her employment to avoid her parents’ threats.

5.  In 2018 when she returned to Indonesia for holiday, her parents again demanded her to marry their creditor and threatened to kill her if she still refused to do so, while their creditor also came to her home almost everyday to press her to marry him, but the Applicant still refused and soon she fled back to Hong Kong to continue with her employment.     

6.  However, after her last employment was prematurely terminated on 19 June 2019, the Applicant 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 29 April 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).               

7.  By a Notice of Decision dated 20 July 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”).

8.  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 parents or their creditor or the local villagers upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from any of them, that there is no evidence of any real intention of either of her parents or their creditor to harm or kill her other than just angry words and empty threats or of any threats from any local villagers at all as on the basis of even her own case that there is no evidence that any villager is aware of her sexual orientation let alone to form any intention to harm her, that in any event these were private disputes between 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 260 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 village in large cities such as Jakarta where it would be difficult if not impossible for anyone to locate her.

9.  The Applicant never lodged any appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and instead on 1 September 2021 filed a Form 86 for leave to apply for judicial review of the Director’s decision, and no ground for seeking relief was given in her Form or supporting affirmation either, nor is there any explanation from her why she never appealed to the Board if she had wanted to challenge the Director’s decision, as she was already so advised by the Director at the conclusion of his decision, nor did she subsequently attend the hearing of her application without any explanation.    

10.  As such, and in the absence of any appeal by the Applicant to the Board against the Director’s decision under Section 37ZR (b) of the Immigration Ordinance, and without having first undergone the second-tier screening process of her non-refoulement claim before the Board under the Unified Screening Mechanism (“USM”), I do not find any legal or procedural basis for her to now apply for judicial review of the Director’s decision, 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