WANDIRA AYU v. TORTURE CLAIMS APPEAL BOARD

HCAL 2020/2023

[2025] HKCFI 2872

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2020 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 31-year-old national of Indonesia who last arrived in Hong Kong on 2 October 2022 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 2 October 2024 or within 14 days of its early termination, but when her employment was prematurely terminated on 5 December 2022, she did not depart and instead overstayed, and was arrested by police on 21 March 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 paternal uncle 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 Desa Mpuri, District Madapangga, Bima, Nusa Tenggara Barat Province, Indonesia. After leaving school she worked as a domestic helper in Taiwan to make her living.

3.  In 2018 she returned to Indonesia as her mother was seriously ill that required expensive medical treatments and medication, and to meet such expenses the Applicant borrowed a loan from her paternal uncle with monthly interest payments which she decided to meet by applying to work in Hong Kong as a foreign domestic helper, which she did in July 2018 by remitting part of her monthly salary from Hong Kong to her uncle in Indonesia to repay her loan by instalments.

4.  However, after her last employment was prematurely terminated on 5 December 2022, and when she was unable to remit any money to her uncle who then threatened to kill her, and so the Applicant 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 27 April 2023 and attended screening interview before the Immigration Department with legal representation.

5.  By a Notice of Decision dated 22 May 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 found no substantial ground for believing that there will be any real and substantial risk of her being harmed or killed by her uncle upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her uncle to seriously harm or kill her other than to press her to repay her loan, 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 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 1.8 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 Surabaya where it would be difficult if not impossible for her uncle to locate her.

7.  On 5 June 2023 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which she elected not to give evidence and declined to answer any questions raised of her claim which the Adjudicator indicated had given rise to issues of credibility which the Board could only resolve if she were willing to give evidence and to answer questions raised thereof, and that the absence thereof may lead to a negative finding in relation to her general credibility, but still the Applicant refused to give evidence or answer questions raised of her claim by the Adjudicator for the Board. On 16 October 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s claim based on the material and information earlier provided by her to the Director and were available in the hearing bundle before the Board but without any evidence or answers from the Applicant at her appeal hearing before the Board despite being explained and invited by the Board to explain and clarify various issues raised of her claim, and that without which the Board found her claim vague unreliable and inconsistent that it concluded that the Applicant had failed to establish her claim that she would face any real risk of harm from her uncle over their alleged monetary dispute upon her return to Indonesia that her claim for non-refoulement protection failed on all the applicable grounds.

9.  On 13 November 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she cited various laws and principles applicable to her claim and put forward the following grounds for her intended challenge:

(1)  That the Board did not consider her claim properly;

(2)  That the lawyer provided for her in her claim before the Director was not helpful at all and was in sleep during the process;

(3)  That the Adjudicator just dismissed her claim without proper consideration that her life is not safe in her home country.

10.  These are however all just 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 failed to consider her claim properly or was not helpful in dealing with her claim. 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 fact is that it has been established by the Director in his decision 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, 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.

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 24 March 2025 filed an affirmation requesting to withdraw her application as she now wants to return to her home country.

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 her wish 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