SAMSIYAH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1085/2024

[2025] HKCFI 5206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1085 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 / the Applicant being absent in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 48-year-old national of Indonesia who last arrived in Hong Kong on 16 January 2022 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 16 January 2024 or within 14 days of its early termination, but when her employment was prematurely terminated on 4 October 2022, she did not depart and instead overstayed, and was arrested by police on 24 November 2022. 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 former husband over their personal disputes.

2.  The Applicant was born and raised in Village Cilempuyang, Sub-district Cimanggu, District Cilacap, Central Java, Indonesia. After leaving school she worked as a domestic helper in various places, and in 2016 she married her husband without formal registration, and raised a family with their son in her home district.

3.  However, their marriage did not fare well as her husband had a hot temper and often abused her by slapping and pushing her around, and in order to avoid his abuses, the Applicant decided to return to work by applying to come to Hong Kong to work as a foreign domestic helper, and when her husband found out about it, he threatened to kill her if she dared to do so, and so she fled to Lampung to take shelter in a relative’s place, and eventually came to Hong Kong later in the same year to start her first employment.

4.  In 2018, she ended her marriage with her former husband, and while working in Hong Kong she met and formed a relationship with another man, but when her former husband found out about it, he threatened to kill her when she returned to Indonesia, and so when her last employment was prematurely terminated in October 2022, she 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 7 February 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 2 June 2023 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 former husband 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 former husband to seriously harm or kill her given the fact that they have already been divorced, that in any event it was a private relationship dispute between just the 2 of 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 279 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 former husband to locate her.

7.  On 14 July 2023, 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 22 April 2024 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 17 May 2024, her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1], the Board found no reliable evidence of any real intention of her former husband to seriously harm or kill the Applicant over any of their disputes given the fact that they have been divorced for some 6 years already, that at the hearing the Applicant also conceded that her former husband has in fact since remarried and has a new family that it is not accepted that he would still have any adverse interest in her that the Board concluded that the Applicant will not face any risk of any harm from anyone upon her return to Indonesia that her claim for non-refoulement protection failed on all applicable grounds.

9.  On 9 July 2024, 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 Adjudicator did not consider the Applicant’s claim properly and directly dismissed it without taking time to think about her life;

(2)  That the Adjudicator unreasonably refused to allow the Applicant to submit her documents without translations and unreasonably refused to give her time to arrange for their translation;

(3)  That the interpreter was not helpful during the appeal hearing and was impatient with her translation.

10.  All these are however just some bare and vague assertions of the Applicant without any necessary or relevant 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 allow her to submit her documents or in what way was the interpreter impatient or unhelpful with her translation during her appeal hearing. 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.

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 Board rejected her claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, 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 reasonably arguable basis to challenge the finding of the Board.

13.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s 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, a decision also agreed and confirmed by the 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.

14.  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.

15.  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