ARI ANANTA alias ARI-ANANTA alias ANANTA ARI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1285/2022

[2025] HKCFI 4404

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1285 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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 42-year-old national of Indonesia who last arrived in Hong Kong on 15 March 2020 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 19 February 2021 whereupon she did not depart and subsequently overstayed, and was arrested by police on 3 May 2021, and for which she was subsequently convicted and sentenced to prison for 2 months. After her discharge form prison and was 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 former husband for refusing to give him money to repay his debts and/or by his creditor over his debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Blitar, East Java, Indonesia. After leaving school she worked as a cleaning worker, married her husband and raised a family with 3 children in her home district.

3.  However, the Applicant soon found her husband to have a bad temper and would frequently demand her to give him money for gambling, and when she failed to do so, he would beat her at will, and so to avoid his continuing abuses and in order to support the family, the Applicant in 2002 went to Taiwan to work as a domestic servant until 2005 when she returned to Indonesia when she discovered that her husband was in debts to some local loan shark who had seized their house and made threats against her family to settle his debts or faced risk of serious injuries or death.

4.  As a result the Applicant had to use all her savings to help paid off some of her husband’s debts, and with the balance to be paid by her husband by monthly instalments in order to keep away the threats from the loan shark.

5.  With their children growing up, the Applicant in 2017 decided to return to work by applying to come to Hong Kong to work as a foreign domestic helper, which she eventually did in August 2017, and subsequently in 2018 she obtained a divorce from her husband after paying him a lump sum as demanded.

6.  However, after the divorce her husband continued to demand more money from the Applicant as he continued to be in debts, and that he even proposed to reconcile with her, but when she refused, he then threatened to kill her when she returned to Indonesia, and at the same time the loan shark also started to make threats against her for money as her husband continued to be in debts, and so upon the expiration of her last employment in February 2021, the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent arrest she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 22 October 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 17 December 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”).

8.  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 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 for money, that in any event these were private monetary disputes between the 3 of 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 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 Jakarta where it would be difficult if not impossible for anyone to locate her.

9.  On 28 December 2021 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 6 September 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 9 November 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her former husband or his creditor that caused her to overstay in Hong Kong to seek protection, that there was no reliable evidence of any real intention of her former husband to seriously harm or kill her when even on her own admission that her husband had never harmed her since 2002 despite having continued to live together as husband and wife for 11 years until she first left Indonesia for Hong Kong in 2017 that it is not accepted that she would face any such risk of harm from her former husband upon her return to Indonesia, nor is there any evidence that she had ever been threatened by his creditor in the past that it is also not accepted that she would face any such risk from her former husband’s creditor upon her refoulement that the Board concluded that her claim for non-refoulement protection failed on all applicable grounds.

11.  On 17 November 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, 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.

12.  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.

13.  In the Applicant’s case, the Board rejected her claim for the thorough and detailed analysis and reasoning set out in 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.

14.  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 even if real is a localized one 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.

15.  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.

16.  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