Nanik Tri Warnita v Torture Claims Appeal Board

HCAL 1791/2023

[2025] HKCFI 266

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1791 OF 2023

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;

Order by Deputy High Court Judge Bruno Chan:

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

Observations for the Applicant:

1.  The Applicant is a 37-year-old national of Indonesia who last arrived in Hong Kong on 22 July 2015 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 15 December 2016 or within 14 days of its early termination, but when her employment was prematurely terminated on 22 June 2016, she did not depart and instead overstayed, and was arrested by police more than 6 years later on 4 January 2023. 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 step-brother over their monetary disputes.

2.  The Applicant was born and raised in Ponorogo, East Java, Indonesia. After leaving school she worked as a domestic helper in various places including Indonesia, Macau and Hong Kong, during which she would remit her salaries to her father in Indonesia for safe keeping.

3.  In 2012 her father lent HK$60,000 of her savings to her step-brother for his use upon his promise to repay the loan within 2 years, and in 2015 her father also used HK$50,000 of her savings to purchase a piece of land in Ponorogo for her at her request.

4.  Later in 2015 when the Applicant returned to Indonesia for holiday and asked her step-brother to repay his loan, but when he refused which then led to a heated argument between them, during which her step-brother beat her with a wooden stick so hard that she fainted and was taken to the hospital by her father for medical treatment, and upon her discharge from the hospital the Applicant returned to Hong Kong to continue with her employment, but when it was subsequently terminated in June 2016, she was afraid to return to Indonesia and therefore overstayed in Hong Kong.

5.  In about mid-2022 the Applicant was informed by her step-brother on the phone that their father had passed away, and when she inquired about the land which her father had purchased for her, her step-brother claimed that the land had now been transferred to him but which he would not be willing to return to her, nor would he repay his loan, and threatened to kill her if she persisted in demanding for them from him upon her return to Indonesia.

6.  As a result the Applicant became fearful for her life, and upon her subsequent arrest by the police in January 2023, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 6 February 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 23 February 2023 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 step-brother upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from, that there is no evidence of any real intention of her step-brother to seriously harm or kill her other than to deter her from reclaiming her land or money, that in any event these were private disputes within their family between the 2 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 270 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 her step-brother to locate her.

9.  On 6 March 2023 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 25 August 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 18 September 2023 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 step-brother that caused her to overstay in Hong Kong to seek protection, that her credibility was further undermined by her failure to raise her claim until years later after her overstay in Hong Kong and only upon her arrest by the police, that even if her claimed risk were real that there was no reliable evidence of any real intention of her step-brother to seriously harm or kill her other than to deter her from pursuing her claim against him, and that in any event these were private monetary disputes between the 2 of them only within their family 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 step-brother that her claim for non-refoulement protection failed on all applicable grounds.

11.  On 6 October 2023 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 just dismiss it without taking time to think about her life;

(2)  That the Adjudicator unreasonably refused to allow her to submit documents in her mother tongue without translation and also refused to give her sufficient time to arrange for their translation;

(3)  That the translator was not helpful and was impatient to translate her evidence at the hearing.

12.  These are however all bare and vague assertions of the Applicant without any relevant or necessary 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 did the Adjudicator fail to properly or sufficiently consider her claim, or what documents that she was not allowed to submit to the Board without translation, or how was the interpreter unhelpful or impatient in translating her evidence at the hearing of her appeal before the Board. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

13.  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.

14.  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.

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.  Moreover, the Applicant recently on 16 December 2024 in writing requested to withdraw her application as she has been able to resolve her problems with her step-brother that it is not safe for her to return to her home country.

17.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation that it is safe for her to return to her home country, I accordingly dismiss her leave application and direct that the scheduled hearing of her application be vacated.

Dated the 13th day of January 2025

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