PARJIYEM v. TORTURE CLAIMS APPEAL BOARD

HCAL 2756/2019

[2025] HKCFI 3566

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2756 OF 2019

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 36-year-old national of Indonesia who arrived in Hong Kong on 8 June 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 8 June 2015 or within 14 days of its early termination, but when her employment was prematurely terminated on 8 June 2013, she did not depart and instead overstayed, and was arrested by police almost 2 years later on 23 April 2015. 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’ creditor over their unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in DS Kemloko, Godong Grobogan Jateng, Indonesia. After leaving school she worked as a farmer to earning her living, and continued to live with her parents in her home district.

3.  In April 2013 she applied to work as a foreign domestic helper in Hong Kong, and while receiving training by her agency in Pati, Central Java, she was informed by her parents that they had borrowed a loan from a local money-lender for the purpose of purchasing a farmland in her home district by securing their house to the creditor for the loan, and that they would require her to help them to repay their loan by instalments, for which she agreed to do so by remitting money to them from her monthly salary which she expected to receive for her job in Hong Kong.

4.  However, after her employment was prematurely terminated in June 2013 in Hong Kong, she was without income to make any remittance to her parents for their loan repayments, whereupon she was advised by her parents not to return to Indonesia as their creditor had made threats against her for failing to send any money, and so the Applicant was afraid to return to Indonesia and instead 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 6 July 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 31 July 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“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’ creditor and followers upon her return to Indonesia as low due to the absence of any past ill-treatment from them, that there is no evidence of any intention of her parents’ creditor to seriously harm or kill her since she was never involved in their loan arrangement, that in any event it was a private monetary dispute between her parents and their 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 253 million people spread across a vast territory 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 anyone to locate her.

7.  On 13 August 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended 2 oral hearings on 16 and 17 of August 2016 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 20 January 2017 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1] the Board accepted the Applicant’s claim of fear of harm from her parents’ creditor that caused her to overstay in Hong Kong to seek protection but found no evidence of any real threats against her by her parents’ creditor who already had their house as security for the loan that it is not accepted that she would face any risk of any harm from the creditor or any proscribed harm of any sort upon her return to Indonesia that it concluded that her claim for non-refoulement protection failed on all applicable grounds.

9.  Meanwhile on 21 March 2017 the Director in writing invited the Applicant to submit additional facts which she may consider relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non‑derogable rights under the HKBOR including right to life under Article 2 (BOR 2 risk”), and in the absence of any response from the Applicant, the Director by a Notice of Further Decision dated 10 April 2017 also rejected his BOR 2 claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon her return to Indonesia.

10.  On 10 April 2018 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, but as her notice of appeal was filed outside the 14-day period required under Section 37ZS (1) of the Immigration Ordinance, and in pursuance of Section 37ZT (2) of the Ordinance, the Board proceeded to decide, as a preliminary decision without a hearing, whether to allow the late filing of her notice of appeal, and by a Decision[2] dated 15 August 2019 the Board refused to allow the late filing of the Applicant’s notice of appeal upon finding that it was late by almost one year which was very substantial, that she failed to give any reason for her such serious delay, and that there were no other circumstances which might make it unjust not to allow the late filing in the light of the reasons given by the Board in its earlier decision of 20 January 2017 that it is not satisfied that the Applicant will face any threat to her right to life upon her return to Indonesia.

11.  On 19 September 2019 the Applicant filed her Form 86 for leave to apply for judicial review not of this second decision of the Board but instead of its earlier decision of 20 January 2017, and put forward the following grounds for her intended challenge:

(1)   That the Board reached the decision wrongly in assessing her non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that her life must be protected by the criminal law from extra-judicial killings that she may face if deported back to her home country;

(2)   That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in her case which led to an unfair outcome of rejecting her claim;

(3)   That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing her claim;

(4)   That the Board had listed relevant COI which supported the Applicant’s aversions that the police in her country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5)   That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions and thus failed to attain high standard of fairness required by the Wednesbury test in its decision;

(6)   That the Board is in breach of procedural fairness in that it had unlawfully fettered its discretion by refusing her appeal on the grounds that they did not satisfy the requirements;

(7)   That the Adjudicator acted in a procedurally unfair manner in dealing with her appeal;

(8)   That the Board’s decision to refuse her appeal was unreasonable or irrational in the public law sense or the result of procedural error or unfairness;

(9)   That the Board had significantly relied on source of news not officially recognized or was simply hearsay or outdated with the lack of credible source of information that resulted in its making groundless speculation that it is safe for her to return to her home country.

12.  By then the Applicant was however obviously out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

13.  As the last day of the three-month period for her to file her Form 86 fell on 20 April 2017, the Applicant was therefore almost 2 ½ years late with her application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicant’s case, a delay of almost 2 ½ years must be considered as extremely substantial and inordinate, for which she did not provide any explanation or reasons in her Form or affirmation, and as the record shows that the Board’s decision was sent on the same day of 20 January 2017 to her then reported address without being returned through undelivered post, I am unable to see any good or valid reason for her such serious delay.

15.  As for the merits, if any, of her intended application, those grounds put forward by the Applicant are all just bare and vague assertions containing a few key words or phrases but without any 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, or what relevancy were state acquiescence or extra‑judicial killings to the Applicant’s case when on the factual basis of even her own case that it was a private monetary dispute between her parents and their creditor only without any official involvement or political element at all. 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 or any merits in her intended application either.

16.  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.

17.  In the Applicant’s case, the Board rejected her non-refoulement claim and dismissed her appeal for the though and detailed analysis and reasoning set out in its first decision with the benefit of hearing her in oral evidence and answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in such process or in the decision being clearly and properly identified by the Applicant, there is simply no basis to challenge the findings of the Board, while it has also been correctly established by the Director in his decision 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, a decision also agreed and confirmed by eth Board, there is simply no justification to afford her with non‑refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18.  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.

19.  Moreover, the Applicant recently on 9 July 2025 in writing requested to withdraw her application as it is now safe for her to return to her home country.

20.  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