TITIN HESTI KUMALASARI v. TORTURE CLAIMS APPEAL BOARD

HCAL 284/2023

[2025] HKCFI 5286

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 284 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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 32-year-old national of Indonesia who arrived in Hong Kong on 9 October 2020 with permission to work as a foreign domestic helper until the expiration of her employment contract on 9 October 2022 or within 14 days of its early termination, but when her employment was prematurely terminated on 2 November 2020, she did not depart and instead overstayed, and was arrested by police on 11 August 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 former husband for ending their marriage. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Glugu, Sub-district Purwodadi, Grobogan Regency, Central java Province, Indonesia. After leaving school she married her husband and raised a family with a son in her husband’s home district in Village Karangpaing, Sub-district Penawangan in the same Grobogan Regency.

3.  However, her marriage was not a happy one as her husband often indulged in drinking and gambling, and would be abusive towards her whenever he was drunk and beat her at will.

4.  Eventually she was unable to put up with her husband’s abuses and left their marriage by returning to her parents’ home in her home village, and to make her living the Applicant went to work in Taiwan as a domestic helper from 2015 to 2017 when she returned to Indonesia.

5.  Upon learning of her return to her home village, the Applicant asked to divorce her husband who however became furious and instead demanded that she returned and resumed their marriage, and when she refused and proceeded to file for divorce by herself whereupon her husband threatened to kill her, and so the Applicant in October 2020 departed Indonesia to avoid her former husband by coming to Hong Kong to work as a foreign domestic helper, but when her employment was prematurely terminated in November 2020, she was afraid to return to Indonesia and therefore 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 21 December 2021 and attended screening interview before the Immigration Department with legal representation.

6.  By a Notice of Decision dated 15 March 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”).

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 former husband upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from, that there is no evidence of any real intention of to seriously harm or kill him, that in any event it was a private dispute between 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 275 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 Bali or Surabaya where it would be difficult if not impossible for her former husband to locate her.

8.  On 23 March 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 11 November 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 2 February 2023 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 exaggerations in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her former husband that caused her to overstay in Hong Kong to seek protection, that even if her claimed threats from her former husband were real that there was no reliable evidence of any real intention of him to seriously harm or kill her other than some angry words or empty threats, and that in any event it was a private relationship dispute between just 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 former husband that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 24 February 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 stated that she does not agree with the decision 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 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.

13.  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.

14.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her 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