SUCI RAMDANI v. TORTURE CLAIMS APPEAL BOARD

HCAL 376/2024

[2025] HKCFI 3842

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 376 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;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 27-year-old national of Indonesia who arrived in Hong Kong on 15 August 2019 with permission to work as a foreign domestic helper until the expiration of her employment contract 15 August 2021 or within 14 days of its early termination, but when her employment was prematurely terminated on 1 August 2020, she did not depart and instead overstayed, and was arrested by police on 11 March 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 creditor over her unpaid debts and/or by her family for getting pregnant without marriage. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Bonjeruk, Nusa Tenggara Barat, Indonesia. After leaving school she together with her elder sister started their own shop selling fashion garments by means of a loan borrowed from some local money-lender and with monthly interest payments which were handled by her sister and paid from their business income.

3.  One day in November 2018 the Applicant was informed by her sister that due to poor business her sister had not been able to repay the loan and for which their creditor had made threats against them that her sister was leaving the country, and advised her to do the same to avoid the threats from their creditor.

4.  As a result the Applicant made arrangements to leave Indonesia for Hong Kong to work as a foreign domestic helper, which she did on 15 August 2019 when she arrived in Hong Kong to start her employment, but when it was subsequently terminated on 1 August 2020, she was afraid to return to Indonesia and instead overstayed in Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 28 September 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  Whilst being released on recognizance pending the determination of her claim, the Applicant met and formed a relationship with a man in Hong Kong and subsequently became pregnant with their child, and for which she also feared of being harmed or killed by her family as it was contrary to the teaching of Islam for a Muslim like her to get pregnant out of wedlock.

6.  By a Notice of Decision dated 11 November 2021 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risks of harm from her creditor or her family upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them, 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 the loan or of her parents to harm her over her pregnancy other than her own speculation, that in any event these were private and personal disputes between her and her creditor and/or her family 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 260 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 where it would be difficult if not impossible for her creditor or her family to locate her.

8.  On 25 November 2021 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 12 October 2022 and 30 November 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board including her concession that her pregnancy had ended prematurely with the loss of the fetus that there is no longer any risk of harm from her family in Indonesia. On 28 December 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1] the Board accepted the Applicant’s claim of fear of harm from her creditor that caused her to overstay in Hong Kong to seek protection, but found no reliable evidence of any real intention of her creditor 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 the 2 of them 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 that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 26 February 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.

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 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 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.

13.  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.  Moreover, the Applicant recently on 6 June 2025 in writing requested to withdraw her application as her issues in her home country have now been resolved.

15.  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 of no further issues 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