ADELLA GABRIELA v. TORTURE CLAIMS APPEAL BOARD

HCAL 641/2024

[2026] HKCFI 2932

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 641 OF 2024

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of Indonesia who arrived in Hong Kong on 6 January 2019 with permission to work as a foreign domestic helper until the expiration of her employment contract on 6 January 2021 or within 14 days of its early termination, but when her employment was prematurely terminated on 15 October 2019, she did not depart and instead overstayed, and was arrested by police on 20 November 2020.  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 creditors for failing to repay her debts and/or by her husband who was angry with her over her such debts.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Jakarta, Indonesia.  After leaving school she married her husband and raised a family with 3 children in her home district.

3.  In 2018 she borrowed various loans from some local loan sharks on behalf of her neighbour for urgent needs and on her neighbour’s promise to repay her upon her husband’s retirement and receipt of his pensions within one month.

4.  However, her neighbour disappeared shortly thereafter without repaying the Applicant, and when those loan sharks came to her home demanding for repayment of her loans with threats, her husband became angry with her for having incurred these loans for her neighbour and kicked her out of their home, and so the Applicant went to Kidiri to make arrangements to leave the country to come to Hong Kong to work as a foreign domestic helper, which she did in January 2019 when she arrived to start her employment. 

5.  When her employment was subsequently terminated in October 2019, the Applicant 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 24 June 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 29 July 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 those loan sharks or her husband upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of those loan sharks to seriously harm or kill her other than to press her to repay her debts, while her husband only kicked her out of their home without actually harming her at all, that in any event these were private monetary or domestic disputes between them 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 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 Medan or Bali where it would be difficult if not impossible for those loan sharks or her husband to locate her.

8.  On 10 August 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which she subsequently failed to attend the scheduled oral hearing on 6 December 2022 before the Board without any explanation or any reply or response to the Board’s enquiries for her absence or any request for another oral hearing, whereupon the Board proceeded to deal with her appeal in her absence and on papers based on all the materials and information earlier submitted by her to the Director and available in the hearing bundle before the Board.  On 27 January 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 and discrepancies in the Applicant’s claim which she failed to attend her appeal hearing to explain or clarify that it doubted the credibility of her claim of fear of harm from her creditors or her husband over any loans that caused her to overstay in Hong Kong to seek protection, that even if her account of events prior to her departure of Indonesia were true that there was no reliable evidence of any real intention of her creditors to seriously harm or kill her other than to press her to repay her debts, while her husband only kicked her out of their home without harming her or making any threats to do so, and that in any event these were private monetary or domestic disputes between 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 creditors or her husband that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 23 April 2024 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 cited various applicable principles and made bare assertions that the Board did not give her a true decision but without providing any details or particulars or elaboration as to how it did so.

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 27 April 2023, the Applicant was therefore almost 12 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 almost 12 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 27 January 2023 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 appeal 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 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.                

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.  Moreover, the Applicant has recently in writing requested to withdraw her application as her issues in her home country have been resolved that she now wants to return to Indonesia as soon as possible.

19.  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 but in view of her latest confirmation of no more issue 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