MUSIYAM v. TORTURE CLAIMS APPEAL BOARD

HCAL 472/2023

[2025] HKCFI 1984

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 472 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 42-year-old national of Indonesia who last arrived in Hong Kong on 25 July 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 last employment was prematurely terminated on 11 December 2021, she did not depart and instead overstayed, and was arrested by police on 30 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 father’s creditor over her father’s outstanding debts.

2.  The Applicant was born and raised in Desa Maron Pwesaiakan, Bandar Sub-district, Batang District, Central Java, Indonesia. After leaving school she married her husband and raised a family with a son in her home district.

3.  In 2010 she went to Singapore to work as a domestic helper until 2013 when she started to come to Hong Kong to work as a foreign domestic helper.

4.  In 2020 while working in Hong Kong, the Applicant was informed by her father in Indonesia that he had borrowed a loan from a local money-lender for his business and had named her as his guarantor, and that he needed her assistance with the monthly instalment repayments of his loan, and for which the Applicant agreed to remit part of her salary to him on a monthly basis.  

5.  However, when her last employment was prematurely terminated on 11 December 2021, and when she was unable to remit money to her father, she was told by her father that his creditor had come looking for her with threats to kill her if she failed to send money to her father to help him to repay his loan, and so the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 20 January 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 6 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 assessed the level of risk of harm from her father’s creditor upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her father’s creditor to seriously harm or kill her other than to press her to repay her father’s debts, that in any event it was a private monetary dispute between her father and his 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 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 or Surabaya where it would be difficult if not impossible for her father’s creditor to locate her.

8.  On 14 April 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 28 February 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 16 March 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision 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 her father’s creditor that caused her to overstay in Hong Kong to seek protection, that even if her such claim were true that there was no reliable evidence of any real intention of her father’s creditor to seriously harm or kill her other than to press her to repay her father’s debts, and that in any event it was a private monetary dispute between them 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 father’s creditor that her claim for non-refoulement protection failed on all applicable grounds. 

10.  On 27 March 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1)  That the Board failed to consider the fact that the Applicant had raised in her claim that she cannot return to her home country where her life would be in danger;

(2)  That the Board failed to consider the relevant COI that the authority of her home country would not be able to protect the Applicant;

(3)  That the Board failed to consider the Applicant’s claim properly under BOR 2 and BOR 3 risks that her life would be at risk upon her refoulement to her home country.    

11.  These are however 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 Board had acted procedurally unfair or irrational or fail to take into account of relevant COI in the assessment of her claim under BOR 2 or BOR 3 risks. 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 26 March 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