IIS NURHAYATI v. TORTURE CLAIMS APPEAL BOARD

HCAL 169/2022

[2025] HKCFI 3899

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 169 OF 2022

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 39-year-old national of Indonesia who last arrived in Hong Kong on 24 June 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 terminated on 5 April 2020, she did not depart and instead overstayed, and was arrested on 23 June 2020 for breaching her conditions of stay, and for which she was subsequently convicted and sentenced to prison for 3 months. After her discharge from prison and was referred to the Immigration Department for deportation, 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 parents’ creditor over their unpaid debts and/or by her family for bringing shame and dishonor to her Muslim family due to her pregnancy out of wedlock with her boyfriend in Hong Kong. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised as a Muslim in Desa Babajurang, Kec. Jatitujuh, Kab. Majalengka, Jawa Barat, Indonesia. After leaving school she worked as a domestic helper in Jakarta and Singapore before coming to Hong Kong to work as a foreign domestic helper to make her living.

3.  In 2019 her parents borrowed a loan from a local money-lender in her name for their own use and repayable by monthly instalments with money remitted by the Applicant to them from her salaries earned in Hong Kong.

4.  However, later in the same year her father became seriously ill and was hospitalized, and for which the Applicant had to pay for his medical expenses and hence her parents stopped making their loan repayments, whereupon their creditor started to send men to threaten them as well as the Applicant as the loan was made in her name.

5.  As a result, and after the termination of her last employment in April 2020, the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong, and later when she discovered her pregnancy out of her relationship with her boyfriend in Hong Kong and informed her family, her mother became furious and threatened to kill her for bringing shame and dishonor to their Muslim family, and so the Applicant raised her non-refoulement claim for protection to the Immigration Department, for which she completed a Non‑refoulement Claim Form (“NCF”) on 8 April 2021 and attended screening interview before the Immigration Department with legal representation.

6.  By a Notice of Decision dated 27 April 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 assessed the level of risk of harm from her parents’ creditor or her family upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from either of them, that there is no evidence of any real intention of her parents’ creditor to seriously harm or kill her other than to press her to repay her parents’ debts or of any further threats from her family given her subsequent concession that her pregnancy had since been terminated after losing the fetus, that in any event these were private and personal disputes between her and her family and her parents’ 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 260 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 Surabaya where it would be difficult if not impossible for anyone to locate her.

8.  On 10 May 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 10 August 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 3 November 2021 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1] the Board accepted the Applicant’s claim of threats from her parents’ creditor over their unpaid debts and from her family due to her pregnancy out of wedlock but found no reliable evidence of any real intention of her parents’ creditor to seriously harm or kill her other than to press her to repay her parents’ debts or of any threats from her family over her pregnancy which had subsequently been terminated, and that in any event these were private and personal matters 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 anyone that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 1 March 2022 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.

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 3 February 2022, the Applicant was therefore almost 1 month 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 almost 1 month must be considered as 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 3 November 2021 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 also 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 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.  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.  Moreover, the Applicant recently on 24 July 2025 in writing requested to withdraw her application as it is now safe for her to return to her home country.

19.  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 that it is safe for her 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