SULASAH v. TORTURE CLAIMS APPEAL BOARD

HCAL 46/2020

[2025] HKCFI 3763

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 46 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 / 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 43-year-old national of Indonesia who last arrived in Hong Kong on 31 July 2013 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 employment was prematurel

2.  y terminated on 5 May 2014, she did not depart and instead overstayed, and was arrested by police on 23 April 2015 and was charged and convicted of breach of condition of stay and was sentenced to 4 weeks’ imprisonment suspended for 3 years. 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 abusive husband. She was subsequently released on recognizance pending the determination of her claim.

3.  The Applicant was born and raised in Winong Village, Jetis Sub-district, Ponorogo District, East Java, Indonesia. After leaving school she married her husband and raised a family with 2 children.

4.  The Applicant’s husband had drinking and gambling habits. He lost a lot of money through gambling and borrowed money from local money-lenders but was unable to repay his debts as he was unemployed. He forced the Applicant to be a foreign domestic helper in Hong Kong and threatened to kill her if she refuses, so that she could earn money to help him to repay his gambling debts as well as to meet their family expenses. From 2008 to 2014, the Applicant worked in Hong Kong as a foreign domestic helper.

5.  In 2010, the Applicant returned home in Indonesia for vacation. Her husband pressed her for more money but she had already sent nearly all her salary to her husband. During the Applicant’s stay in Indonesia, whenever her husband came home drunk or lost money in gambling, he would beat the Applicant with bare hands and on one occasion he tried to strangle her and as a result of the assaults she suffered bruises and swellings all over her body.

6.  In May 2014, unbeknownst to the Applicant’s husband that her employment contract was terminated, he called her and demanded more money from her or otherwise he would kill her, and he became furious upon hearing that the Applicant lost her job in Hong Kong. The Applicant became so scared that she changed her phone number. Since then she continued to overstay in Hong Kong and after 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 29 March 2018 and attended screening interview before the Immigration Department with legal representation.

7.  By a Notice of Decision dated 25 April 2018 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 found no substantial grounds for believing that there will be any real and substantial risk of harm from her husband upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of them to seriously harm or kill her other than angry words and empty threats, that in any event it was a private domestic dispute between the 2 of them only without any official involvement that state or police protection as well as assistances and supports from various NGOs for victims of domestic violence 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 255 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 and Semarang where it would be difficult if not impossible for her husband to locate her.

9.  On 8 May 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, and for which she attended an oral hearing on 4 December 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 20 December 2019, her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision 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 abusive husband that caused her to leave her country to come to Hong Kong to seek protection, that even if it accepted the Applicant’s claim of fear of domestic violence or harm from her husband, the level of harm as the Applicant claims do not reach the necessary severity which would warrant a success claim, and that it was only the Applicant’s speculation that she would be subject to further harm in the future, and in any event it was a private domestic dispute between the 2 of them only without any official involvement that state or police protection and assistances and supports for victims of domestic violence 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 husband that her claim for non-refoulement protection failed on all applicable grounds.

11.  On 6 January 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 in her supporting affirmation of the same date in which she just stated that the Board disregarded her dangerous situation but without putting forth any proper ground for her intended challenge. 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.

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 fact is that it has been established by both the Director and the Board in their respective decisions 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, 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.  Moreover, the Applicant recently on 10 September 2024 in writing requested to withdraw her application as she now wishes to return to her home country but without providing any further details or explanation as to what has happened to her claimed risk in her home country.

16.  For 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