|
HCAL 169/2024
[2026] HKCFI 3858
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 169 OF 2024
|
BETWEEN
|
| |
Ana Rosita |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board |
Putative |
| |
|
Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
The application for leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
1. The Applicant is a 32-year-old national of Indonesia who arrived in Hong Kong on 9 June 2015 with permission 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 19 February 2023, she did not depart and instead overstayed, and was arrested by police on 9 May 2023. 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 creditor for failing to repay her debts. She was subsequently released on recognizance pending the determination of her claim.
2. The Applicant was born and raised in Malang, East Java, Indonesia. After leaving school she worked as a fashion designer to make her living, and resided with her mother and younger brother in her home district after her father had divorced her mother and drove them out of their home.
3. In order to earn higher income to support her mother and brother, the Applicant in 2015 started coming to Hong Kong to work as a foreign domestic helper.
4. In December 2020 to assist her mother to purchase a home for the family the Applicant borrowed a loan from a money-lender in her home district in Indonesia to be repaid by monthly instalments with interests, and with which her mother in early 2021 purchased a flat and moved in with the Applicant’s brother.
5. However, due to her own financial needs, the Applicant in March 2021 started to default in her loan repayments, whereupon her creditor would come to her mother’s home in Indonesia looking for her, and made threats to kill her when she returned to Indonesia.
6. As a result the Applicant became fearful for her life, and so after her last employment contract was prematurely terminated on 19 February 2023 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 26 June 2023 and attended screening interview before the Immigration Department with legal representation.
7. By a Notice of Decision dated 21 July 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”).
8. In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her creditor upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from her creditor, that there is no evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, that in any event it was a private monetary dispute between her and her 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”) shows that reasonable internal relocation alternatives are available in Indonesia with a large population of 270 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 Bali where it would be difficult if not impossible for her creditor to locate her.
9. On 28 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 18 October 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 28 December 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.
10. In its decision[1] the Board found material inconsistencies, discrepancies and implausibility in the Applicant’s case that it doubted the credibility of her claim of fear of harm from some creditor over her unpaid debts that caused her to overstay in Hong Kong to seek protection, that her credibility was further undermined by her failure to raise her claim upon first overstaying in Hong Kong until almost 3 months later and only after her arrest by the police, that even if her claim of threats from her creditor over her debts were true that there was no reliable evidence of any real intention to seriously harm or kill her other than to press her to repay her debts, and that in any event it was a private monetary dispute between her and her creditor 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 creditor that her claim for non-refoulement protection failed on all applicable grounds.
11. On 17 January 2024 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 in which she just repeated her claim as before but without putting forth any proper ground for her intended challenge. 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.
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 parts 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. 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. Moreover, the Applicant has recently on 9 May 2026 in writing requested to withdraw her application as it is now safe for her to return to her home country.
16. 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.
Dated the 17th day of July 2026
| |
(Joyce Ooi)
for Registrar, High Court
|
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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
|
|
|
|
|
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
|
|
Sent to the Applicant on
17 July 2026
Ana Rosita
Applicant’s ref. no.:
Nil. |
|
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 17 July 2026
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 21982
Director of Immigration
Putative Respondent’s ref. no.:
QA T/C 563/23
(formerly RBCZ 5000520/23)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
|
Form CALL-1
|