ROHMIYATUN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1321/2023

[2025] HKCFI 2870

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1321 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 43-year-old national of Indonesia who last arrived in Hong Kong on 21 February 2019 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 16 January 2021 or within 14 days of its early termination, but when her last employment was prematurely terminated on 17 April 2021, she did not depart and instead overstayed, and was arrested by police on 18 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 husband’s creditors for failing to repay her husband’s debts.

2.  The Applicant was born and raised in Desa Purwogondo, Sumur Arum, Kecamatan Grebag, Magelang, Jawa Tengah, Indonesia. After leaving school she worked as a domestic servant in Singapore and Taiwan, married her husband in 2007 and moved into his home in neighboring district in Kecamatan Secang to raise a family with their son.

3.  In 2009 she started to come to Hong Kong to work as a foreign domestic helper, returning to her husband’s home in Indonesia from time to time for holidays.

4.  In 2011 she was told by her husband that he had borrowed loans from various local money-lenders in her name, and for which he required her to remit part of her salary to him to assist with his loans repayments.

5.  Thereafter she heard from her mother-in-law that her husband’s creditors had come to their home to demand repayments from her husband, and would make threats against him and her mother-in-law as well as asking for the Applicant’s whereabouts as they also held her responsible for her husband’s debts.

6.  On one occasion in 2019 when she returned to her home in Indonesia for holiday, the Applicant and her son were struck and fell to the ground by 2 men on motorbikes who then claimed to be her husband’s creditors and demanded her to repay his debts by taking all the money that she then had with her as well as her cell phone before they left.

7.  Upon her return to Hong Kong to continue with her job, the Applicant continued to receive phone calls from her son and mother-in-law in Indonesia of threatening demands from her husband’s creditors for her to repay his debts, and so when her last employment was prematurely terminated in April 2021, the Applicant 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 26 January 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 21 February 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”).

9.  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 husband’s creditors 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 any of them to seriously harm or kill her other than to press her to repay her husband’s debts, that in any event these were private monetary disputes between her husband and his creditors 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 where it would be difficult if not impossible for her husband’s creditors to locate her.

10.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 12 July 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 20 January 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  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 husband’s creditors that caused her to overstay in Hong Kong to seek protection, that even if her claimed account were true that there was no reliable evidence of any real intention of any of those creditors to seriously harm or kill her other than to press her to repay her husband’s debts, and that in any event these were private monetary disputes between her husband and his creditors 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 anyone that her claim for non-refoulement protection failed on all applicable grounds.

12.  On 1 August 2023 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 her supporting affirmation of the same date to which she just attached a copy of the decision but without putting forward any proper ground for her intended challenge.

13.  By then the Applicant was also 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.

14.  As the last day of the three-month period for her to file her Form 86 fell on 20 April 2023, the Applicant was therefore more than 3 months 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.

15.  In the Applicant’s case, a delay of more than 3 months must be considered as very 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 decision was sent on the same day of 20 January 2023 to her then reported address without being returned through undelivered post, I am unable to see any good or valid justification for her such serious delay.

16.  As for the merits, if any, of her intended application, as noted above that the Applicant has also failed to put forth any proper ground for her intended challenge, and in 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 merits in her intended application either.

17.  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.

18.  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.

19.  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.

20.  Moreover, the Applicant recently on 26 May 2025 in writing requests to withdraw her application as it is now safe for her to return to her home in Indonesia.

21.  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