DEMES ASRINING TIAS v. TORTURE CLAIMS APPEAL BOARD

HCAL 602/2023

[2026] HKCFI 2677

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 602 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;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 4 August 2022 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 36-year-old national of Indonesia who arrived in Hong Kong on 28 August 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 28 August 2016 or within 14 days of its early termination, but when her employment was prematurely terminated on 3 August 2015 she did not depart and instead overstayed, and was arrested by police more than 5 years later in February 2021, and while being remanded in the custody of the Correctional Service, 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 deceased father’s creditor over his debts.

2.  The Applicant was born and raised in Village Banjarrejo, Sub-district Wringin Agung, Banyuwangi Regency, East Java, Indonesia. After leaving school she went to work in Taiwan as a domestic helper until August 2014 when she came to Hong Kong to work as a foreign domestic helper to make her living.

3.  However, after her employment was prematurely terminated on 3 August 2015, she did not return to Indonesia and instead overstayed in Hong Kong.

4.  Some 4 years later in 2019 she was informed by her mother on the phone calling from Indonesia that her father had just passed away, whereupon a man claiming to be her father’s creditor grabbed the phone and threatened that the Applicant should repay her father’s debts or else she would be killed upon her return to Indonesia.

5.  As a result the Applicant became fearful for her life and ceased all further contact with her mother in Indonesia, and upon her subsequent arrest by the police in early 2021 she then raised her non-refoulement claim for protection, for which she completed a Non‑refoulement Claim Form (“NCF”) on 23 March 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 11 May 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 found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by her deceased father’s creditor upon her return to Indonesia due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of the creditor to seriously harm or kill her other than to press her to repay her father’s debts, that in any event it was a private monetary dispute between her deceased father and his 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”) show that reasonable internal relocation alternatives are 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 where it would be difficult if not impossible for anyone to locate her.

8.  On 26 May 2021 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 22 June 2022 before the Board during which she gave evidence and answered questions raised by the Adjudicator of her claim as well as a new claim of fear of being harmed by the villagers in her home village due to her sexual orientation as a lesbian which she somehow failed to raise in her screening interview before the Director. On 4 August 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1] the Board found material inconsistencies discrepancies and implausibility in the Applicant’s evidence that it doubted and rejected the credibility of her claims of fear of harm from her deceased father’s creditor over any debts or from her fellow villagers over her sexual orientation as a lesbian that caused her to overstay in Hong Kong to seek protection, that there is no evidence of any sort other than her bare and vague assertions to support or corroborate her claims, that it is not accepted that if she was genuinely in fear of being harmed due to her sexual orientation that she could fail to raise such claim before the Director when she was then legally represented, that her credibility was further undermined by her failure to raise her claims upon first overstaying in Hong Kong in August 2015 until more than 5 years later in February 2021 and only after being arrested by the police that the Board concluded that she had fabricated both of such claims as bases for non-refoulement protection, and that in any event even if such claims were real that they arose from private and personal disputes 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 anyone that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 21 April 2023 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 claims as before but without putting forth any proper ground for her intended challenge.

11.  By then the Applicant was also out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

12.  As the last day of the three-month period for her to file her Form 86 fell on 4 December 2022 after discounting the month of August 2022 for court’s vacation, the Applicant was therefore more than 4 months late with her application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13.  In the Applicant’s case, a delay of more than 4 months must be considered as very substantial and inordinate, for which she did not provide any explanation or reasons in her Form or affirmation, and as the record shows that the decision was sent on the same day of 4 August 2022 to her then reported address without being returned through undelivered post, I am unable to see any good or valid reason for her such serious delay.

14.  As for the merits, if any, of her intended application, as noted above that the Applicant has failed to put forward any proper ground for her intended challenge, 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 merits in her intended application either.

15.  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.

16.  In the Applicant’s case, the Board rejected her claim 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, 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 finding of the Board.

17.  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 claim 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.

18.  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.

19.  It is also of note that the Applicant has recently in writing requested to withdraw her application as she now wants to return to Indonesia as soon as possible but without any explanation as to what happens to her claimed risks in her home country.

20.  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 the absence of any good reason for her serious delay, I refuse to extend time and 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