SALBIYAH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1804/2020

[2025] HKCFI 4402

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1804 OF 2020

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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of Indonesia who last arrived in Hong Kong on 30 August 2017 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 20 August 2018 or within 14 days of its early termination, but when her employment was prematurely terminated on 4 November 2018, she did not depart and instead overstayed, and on 10 July 2019 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Indonesia she would be harmed or killed by her step-father and/or his creditor for failing to help repaid her step-father’s debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Candirenggo, Ayah, Kebumen, Central Java, Indonesia. Her parents divorced when she was just a child, and thereafter she stayed with her mother who subsequently re-married, but the Applicant’s step-father however disliked her and often mistreated her, and even on one occasion tried to rape her.

3.  After leaving school the Applicant went to work as a domestic servant in various places including Taiwan, Singapore and Malaysia before eventually returning to her mother’s home in Indonesia, during which she learnt that her step-father had been in numerous debts from the local loan sharks and often demanded her to repay his debts on his behalf or to marry one of his creditors to set off his debts, and when she refused he then beat her and threatened to kill her, and so to get away from his abuses, the Applicant therefore came to Hong Kong to work as a foreign domestic helper.

4.  In July 2017, when she returned to Indonesia for her holiday to visit her mother, some unknown men who claimed to be her step-father’s creditors approached her and demanded that she repaid her step-father’s debts, and when she refused they beat her until her mother and neighbors came to her help, and thereafter the Applicant fled from her mother’s home to take shelter in her aunt’s place for the rest of her holiday before returning to Hong Kong to resume her employment.

5.  However, when her last employment was prematurely terminated on 4 November 2018, the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong, and on 10 July 2019 she surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 4 November 2019 and attended screening interview before the Immigration Department with legal representation.

6.  By a Notice of Decision dated 16 December 2019 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 step-father or his creditor upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of either of them to seriously harm or kill her other than to press her to repay her step-father’s debts, that in any event it was a private monetary dispute between 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 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 Jakarta where it would be difficult if not impossible for anyone to locate her.

8.  On 23 December 2019 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 15 May 2020 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board but also raised additional claims that she has since converted her religion from Islam to Christianity that she fears of being persecuted by the Muslim community upon her return to Indonesia, and that it is necessary for her to remain in Hong Kong to continue to receive medical treatments for her leg injury which she suffered earlier during her employment but which she fears she may not be able to obtain in her home village. On 3 September 2020, 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 contradictions in the Applicant’s evidence as to her claims of fear of harm from her step-father over his debts and his creditors that it rejected the credibility of her such claims as just her fabrications to strengthen her claim for non-refoulement protection that it found no real risk of proscribed harm to her under any of the applicable grounds from her step-father or his creditors upon her return to Indonesia, while her claim of fear of discriminations/persecutions from the Muslim community due to her recent religious conversion to Christianity is also not convincing but found even if her claimed conversion were true that there is no reliable evidence that she will face such risk in her home country as according to relevant COI that Christianity is the second largest religion in Indonesia and that freedom of religions is protected by the Indonesian laws and constitution with no serious or major incidents of religious conflicts within the country to justify any real fear on the part of the Applicant, and while it is accepted that she did have an accident in Hong Kong that led to her leg injury which she prefers to be able to continue to receive medical attention in Hong Kong but found that her medical condition as claimed and evidenced by her medical reports would not amount to any proscribed harm under any of the applicable grounds and that she as an Indonesian citizen would be entitled and able to access and receive equivalent or similar medical attentions upon her return to Indonesia that the Board concluded that all her claims for non-refoulement protection failed on all applicable grounds.

10.  On 10 September 2020, 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 repeated her claim as given to the Director of fear of harm from her step-father and his creditor as before without any mention of the new fears raised in her appeal to the Board as noted above but without putting forth any proper ground for her intended challenge, nor was she able to do so at the hearing of her application. 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 Board rejected her claims for the thorough and detailed analysis and reasoning set out in paragraphs 26 – 58 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law 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 to challenge the finding of the Board.

13.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim as regard threats from her step-father or his creditor even if real are localized ones and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, a decision also agreed and confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.  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.

15.  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