RISMA AYU v. TORTURE CLAIMS APPEAL BOARD

HCAL 2138/2024

[2025] HKCFI 803

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2138 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;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 29 January 2024 be refused; and

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

Observations for the Applicant:

1.  The Applicant is a 45-year-old national of Indonesia who last arrived in Hong Kong on 8 August 2018 with permission to continue 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 21 December 2021, she did not depart and instead overstayed, and was arrested on 4 July 2022 for which she was subsequently convicted and imprisoned for 15 months, during which 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 outstanding debts.

2.  The Applicant was born and raised in Village Dasan Tereng, District Narmada, West Lombok Regency, West Nusa Tenggara, Indonesia. After leaving school she worked as a domestic helper, got married and raised a family with 3 children in her home village.

3.  In 2009 she started coming to Hong Kong to work as a foreign domestic helper, and in 2018 when she returned to Indonesia for holiday, she purchased a property in her home village as her family home with the help of a loan borrowed from a relative living in the same village to be repaid by instalments within 3 years by end of 2021, whereupon she returned to Hong Kong to continue with her employment, and to remit money to her creditor for her loan instalment payments.

4.  However, after her last employment was prematurely terminated, and when she was without income to make her loan instalments, and when her creditor demanded for the repayment of her loan, the Applicant was afraid of being harmed if she returned to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent arrest she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 21 October 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 21 November 2022 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 assessed the level of risk of harm from her creditor upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from her creditor, that there is no evidence of any real intention of her creditor who is a relative 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 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 277 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 where it would be difficult if not impossible for her creditor to locate her.

7.  On 9 December 2022 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 July 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 29 January 2024 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found no reliable evidence of any real intention of the Applicant’s creditor who is in fact her nephew 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 if resorted to 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.

9.  On 14 November 2024 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1)  That the Adjudicator reached a decision that her attackers would not harm or kill her based on a reasoning process that was internally inconsistent and logically flawed that the decision is unlawful on the ground of irrationality;

(2)  That the Adjudicator reached the decision wrongly in assessing her non-refoulement claim in that the decision was not reasonable or fair as required by the Wednesbury test in failing to recognize that the Applicant’s right to life must be protected from extra-judicial killings that she may face if deported back to her home country

(3)  That the Board failed to appreciate or give proper importance or weight to the presence of state Acquiescence in the Applicant’s case that led to an unfair outcome of rejecting her non-refoulement claim which was a clear case of unfair attitude shown by the Board which in itself is enough to render the decision void.

10.  By then the Applicant was however 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.

11.  As the last day of the three-month period for her to file her Form 86 fell on 29 April 2024, the Applicant was therefore more than 6 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.

12.  In the Applicant’s case, a delay of more than 6 months must be considered as very substantial and inordinate, for which s explained in her Form that she is uneducated and was not aware of the procedural requirement for the filing of her application, and at the hearing of her application she added that she never received the decision in the mail, and that it was later when she reported on her recognizance that she was so informed by her immigration officer, but by then she was already out of time with her application.

13.  The record shows that the decision was sent on the same day of 29 January 2024 to the Applicant’s then reported address without being returned through undelivered post, and in the absence of any reliable evidence to corroborate her bare assertions, I am not satisfied that the Applicant has provided a good or valid reason for her such serious delay.

14.  As for the merits, if any, of her intended application, those grounds put forward by the Applicant are all just bare and vague assertions containing a few key words or phrases but 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 in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or what relevancy were state acquiescence or extra-judicial killings to the Applicant’s case when on the factual basis of even her own case that it was a private monetary dispute between her and her creditor 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, nor was she able to do so at the hearing of her application, I do not find any of them reasonably arguable for her intended challenge.

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 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.

17.  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.

18.  For all these reasons I am 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