ROYATI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1782/2024

[2025] HKCFI 2763

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1782 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 38-year-old national of Indonesia who arrived in Hong Kong on 26 October 2023 with permission to work as a foreign domestic helper until the expiration of her employment contract 26 October 2025 or within 14 days of its early termination, but when her employment was prematurely terminated on 29 December 2023, she did not depart and instead overstayed, and was arrested by police on 3 May 2024. 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 over her affair with another man in Hong Kong.

2.  The Applicant was born and raised in Village Bojong Java, District Pusaka Nagara, Subang, West Java, Indonesia. After leaving school she worked as a shop keeper in her home district before going to Oman and Taiwan to work as a domestic helper.

3.  In 2014 she returned to Indonesia to marry her husband, but soon she found him to be hot temper and abusive who blamed her for failing to bear any children for him, and by 2023 when he started using physical violence on her by punching and kicking her whenever he lost his temper, the Applicant decided to leave him by applying to work in Hong Kong as a foreign domestic helper, which she did in October 2023 to start her employment, during which she met and formed a relationship with a Pakistani man in Hong Kong.

4.  One day in December 2023 the Applicant received a telephone call from her husband who claimed to have seen intimate pictures of her with the Pakistani man posted in her social media account, and threatened to kill her for having an affair with that man when she returned to Indonesia, whereupon the Applicant became fearful for her safety and cut off all further contact with her husband.

5.  Hence when her employment was prematurely terminated on 29 December 2023, 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 7 June 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 4 July 2024 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 risk of harm from her husband upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her husband to seriously harm or kill her other than just angry words and empty threats uttered over their telephone conversation, that in any event it was a private domestic dispute between just 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 281 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 husband to locate her.

8.  On 12 July 2024, 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 16 September 2024 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 30 September 2024, her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board accepted the Applicant’s claim of fear of harm from her husband over their domestic disputes but found no reliable evidence of any real intention of her husband to seriously harm or kill her other than angry words and empty threats uttered over their telephone conversations, and that in any event it was a private domestic 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 by her husband that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 9 October 2024, the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation she put forward the following grounds for her intended challenge:

(1)  Procedural impropriety in failing to properly apply para 2 of the UN Committee Against Torture General Comment No 2 whereby satisfaction of a national state’s obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event if the TCAB which focused on whether such reliefs showed merely signs of positive improvement;

(2)  Procedural impropriety in failing to conduct sufficient inquiry into relevant COI to consider that the Applicant would face serious risk from her enemies who will harm her because of her political and statistical view which is a serious matter that the Board completely failed to materialize her fear in her claim;

(3)  Procedural impropriety/irrationality in failing to give reason for assessment of lack of BOR 2 risk and/or sufficient basis to support conclusion of lack of BOR 2 risk that the Applicant’s life would be at risk upon refoulement to her home country;

(4)  Error/misdirection in law in failing to consider the psychological strains and threats to kill the Applicant personally and that her enemy is still looking for her that she would not dare to return to her home country;

(5)  Procedural impropriety in failing to consider the risk waiting for her in her home country as she cannot relocate to other places as her enemy could easily trace her where ever she hides in the country;

(6)  That there was no sufficient basis for the Board to conclude that the Applicant and her family would not be at risk of being subjected to torture and/or CIDTP upon refoulement.

11.  These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary 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 in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what evidence or relevancy was the Applicant’s political view to her case when on the factual basis of even her own case that it was a private domestic dispute between her and her husband only without any official involvement or political element at all. 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.

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 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.

14.  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 recently on 14 April 2025 filed an affirmation requesting to withdraw her application as she now wants to return to her home country but without any explanation as to what has happened to her claimed risk in Indonesia.

16.  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