MARIASIH v. TORTURE CLAIMS APPEAL BOARD

HCAL 2263/2024

[2025] HKCFI 804

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2263 OF 2024

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 35-year-old national of Indonesia who arrived in Hong Kong on 24 June 2022 with permission to work as a foreign domestic helper until the expiration of her employment contract on 24 June 2024 or within 14 days of its early termination, but when her employment was prematurely terminated on 15 March 2023, she did not depart and instead overstayed, and was arrested on 14 November 2023 for which she was subsequently convicted and sentenced to prison for 15 months, during which she raised a non-refoulement claim for protection to the Immigration Department on the basis that if she returned to Indonesia she would be harmed or killed by her parents for bringing shame to her family for being a lesbian.

2.  The Applicant was born and raised as a Muslim in Desa Sumber Gede, Kec Sekampung, KAB Lampung Timur, Indonesia. While at school she discovered her sexual orientation towards women, but being in a mainly Muslim society she did not dare to reveal it, and after leaving school she was arranged by her parents to marry her husband when she then raised a family with 3 children in her home district.

3.  In 2017 the Applicant went to Taiwan to work as a domestic helper, during which she met and formed a lesbian relationship with a fellow female Indonesian domestic helper, and upon completing her employment in Taiwan in 2020, she returned to Indonesia and confessed to her husband of her lesbian relationship and asked for a divorce, to which her husband agreed and which they subsequently did, but when her parents found out that she is a lesbian, they became furious and threatened to kill her for bringing shame to their family, and so the Applicant fled from her home district to another place and cut off all contacts with her parents.

4.  In June 2022 the Applicant came to Hong Kong to work as a foreign domestic helper, but when her employment was prematurely terminated on 15 March 2023, she was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent arrest she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 29 May 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 22 July 2024 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 parents 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 angry words and empty threats, that in any event it was a private personal dispute between her and her parents 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 there are laws in Indonesia to protect women and children as well as the LGBTQ social groups and with supports and assistances from various governmental departments and relevant NGOs, while reasonable internal relocation alternatives are also available in Indonesia with a large population of 280 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 parents to locate her.

7.  On 1 August 2024 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 14 October 2024 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 24 October 2024 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found no reliable evidence of any real intention of her parents to seriously harm or kill her other than angry words and empty threats, and that in any event it was a private personal dispute between her and her parents within their family only without any official involvement that state or police protection would be available to the Applicant upon her return to if resorted to, and that there are laws in Indonesia to protect her human rights and freedom of expressions 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.

9.  On 26 November 2024 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date to which she just attached a copy of the decision and repeated her claim as before but without putting forth any proper ground for her intended challenge, nor was she able to do so at the hearing of her application. As such, and in the absence of any error of law or irrationality 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 for her intended challenge of the Board’s decision.

10.  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.

11.  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 her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12.  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.

13.  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