SRI WAHYUNINGSIH v. TORTURE CLAIMS APPEAL BOARD

HCAL 2420/2020

[2025] HKCFI 4543

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2420 OF 2020

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 38-year-old national of Indonesia who last arrived in Hong Kong on 10 October 2012 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 18 October 2014 or within 14 days of its early termination, but when her employment was prematurely terminated on 21 December 2012, she did not depart and instead overstayed, and was arrested by police more than 2 years later on 24 June 2015 for breach of her conditions of stay and possession of an identity card of another person, for which she was subsequently convicted and sentenced to prison for 12 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 family’s creditor over their unpaid debts and/or discrimination and persecution by the Muslim community due to her sexual orientation as a lesbian.

2.  The Applicant was born and raised as a Muslim in Banyumas, Central Java, Indonesia. After leaving school she worked as a domestic helper in Malaysia until early 2011 when she returned to her home in Indonesia, during which she started to realize that she was a lesbian.

3.  In February 2011, one of her brothers suffered a serious car accident and was hospitalized with large medical bills, and for which her family borrowed a loan from a local money-lender to be repaid within 5 years and with monthly interests payments, and in order to assist her family with the loan repayment the Applicant applied to work as a foreign domestic helper in Hong Kong, which she subsequently did in February 2012 when she arrived in Hong Kong to start her first employment contract and to remit part of her monthly salary to her family in Indonesia for their loan repayments.

4.  However, after her last employment was prematurely terminated on 21 December 2012, the Applicant was unable to send money to her family for repayment of their debts, and as a result their creditor started to make threats against her family including the Applicant, and so she was afraid to return to Indonesia and therefore overstayed in Hong Kong, during which she formed a lesbian relationship with someone by the name of Annie, of which she subsequently informed her family in Indonesia who however became angry and rejected their relationship as contrary to the teachings of Islam, which caused her also to become fearful of being harmed or persecuted by the Muslim community due to her sexual orientation upon her return to Indonesia, and so upon her subsequent arrest by the police she therefore raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 14 July 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 24 July 2020 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 found no substantial grounds for believing that there will be any real and substantial risk of her being harmed by her family’s creditor or persecuted by the Muslim community upon her return to Indonesia due to the absence of any past ill-treatment from either of them, that even if the risk from her family’s creditor were real that there is no evidence of any real intention of the creditor to seriously harm or kill her other than to press her or her family to repay their debts, that in any event it was a private monetary dispute between her family and their creditor only without any official involvement that state or police protection would be available to the Applicant if resorted to, while there is also no evidence or indication of any harm or persecution from any Muslims in her home country or even any indication of any threats against her over her sexual orientation, and that reliable and objective Country of Origin Information (“COI”) show that there are laws and constitution in Indonesia to safeguard and protect the human rights of sexual minorities and with various NGOs to provide support and assistance to the LGBT community, while reasonable internal relocation alternatives are also available in Indonesia with a large population of 267 million people spread across a vast territory of more than 1.8 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 Bali where it would be difficult if not impossible for anyone to locate her.

7.  On 6 August 2020, 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 20 and 21 October 2020 with her lawyer from DLS before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board as well as submissions by her lawyer on her behalf. On 12 November 2020, her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1], the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claims of fear of harm from any creditor of her family due to any debts of her family or of any persecution from any Muslims due to her alleged sexual orientation that caused her to overstay in Hong Kong to seek protection, that even if her account of events as regard her brother’s hospitalization for which her family had incurred debts were true that there was no evidence of any involvement of her therein or of any threats made against her by the creditor that it is not accepted that she would face any risk of harm from her family’s creditor upon her return to Indonesia that in the absence of any official involvement that state or police protection would also be available to the Applicant if so needed, nor is there any evidence of any past harm that she had faced in Indonesia arising from her sexual orientation as a lesbian even if her such claim were true, and that she can relocate to other parts of Indonesia such as Bali which has a reputation for welcoming or tolerant of the LGBT community and where Hindu is the religious majority that it is not unduly harsh for her to move and live there and easily find work in the hotels and tourists accommodations there, and concluded that the Applicant has failed to establish that she would face any real risk of harm or persecution as asserted upon her return to Indonesia that her claim for non-refoulement protection failed on all applicable grounds.

9.  On 10 December 2020, 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, nor did she request any oral hearing for 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 Board rejected her claims essentially on its adverse finding on her credibility 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 claims as well as with proper assessment of the COI relevant to her claims, 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 findings of the Board.

12.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risks of harm in the Applicant’s claims even if real are localized ones 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.

13.  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.

14.  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