ELINDA WATI BT SUPARTA ARJA v. TORTURE CLAIMS APPEAL BOARD

HCAL 658/2024

[2026] HKCFI 1861

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 658 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 / 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 45-year-old national of Indonesia who last arrived in Hong Kong on 13 June 2019 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 25 February 2021, she did not depart and instead overstayed, and was arrested by police on 17 June 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 the debts-collectors of her husband’s creditor over his unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

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

3.  In 2010 she went to Taiwan to work as a domestic helper before coming to Hong Kong in 2017 to work as a foreign domestic helper to help support the family by remitting part of her monthly salary to her husband in Indonesia for the support of their family.

4.  In 2020 while she was working in Hong Kong, and in order to meet her grandmother’s medical expenses, her husband borrowed a loan from a local bank to be repaid by monthly instalments with money sent by the Applicant in Hong Kong.

5.  However, after her last employment was terminated in February 2021, the Applicant was unable to send any more money to her husband for the repayment of the loan, whereupon the bank started sending debts-collectors to threaten her husband, and after being told that he had always relied on the Applicant to send money from Hong Kong for the loan repayments, those debts-collectors also made threats against her, and so the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 16 November 2021 and attended screening interview before the Immigration Department with legal representation.             

6.  By a Notice of Decision dated 4 January 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 those debts-collectors of her husband’s creditor 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 debts-collectors of her husband’s creditor to seriously harm or kill her other than to press her to repay her husband’s debts, that in any event it was a private monetary dispute between her husband 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 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 Jakarta or Bali where it would be difficult if not impossible for those debts-collectors or her husband’s creditor to locate her.

8.  On 14 January 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 7 September 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 3 March 2023 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 fear of harm from those debts-collectors of her husband’s creditor but found no reliable evidence of any threats being made directly against the Applicant or of any real intention of them to seriously harm or kill her other than to press her to repay her husband’s debts, and that in any event it was a private monetary dispute between her husband and his creditor 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 25 April 2024 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1)  That the Adjudicator did not consider her claim properly and directly dismissed it without taking any time to think about her life;

(2)  That the Adjudicator unreasonably refused to allow her to submit her supporting documents without translations and also failed to give her time to arrange for their translation;

(3)  That the interpreter was impatient and unhelpful to her during the appeal hearing before the Board.   

11.  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.

12.  As the last day of the three-month period for her to file her Form 86 fell on 3 June 2023, the Applicant was therefore more than 10 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 10 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 3 March 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, those grounds put forward by the Applicant are all just some bare and vague assertions 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 supporting documents that she was not allowed to submit without their translations, or in what way was the interpreter impatient or unhelpful to her during her appeal hearing before the Board. None of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, and as such 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 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.  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 has happened to her claimed risk in her home country.

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 such 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