Kiki Rizki Ananda v. Torture Claims Appeal Board

HCAL 557/2022

[2025] HKCFI 1215

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 577 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 / 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 34-year-old national of Indonesia who arrived in Hong Kong on 23 December 2018 with permission to work as a foreign domestic helper until the expiration of her employment contract in November 2020 or within 14 days of its early termination, but when her employment was prematurely terminated on 8 December 2019, she did not depart and instead overstayed, and was subsequently arrested by police. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her former boyfriend for leaving him and to marry another man in Hong Kong. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Cilacap, Central Java, Indonesia. After leaving school she married her former husband and raised a family with 2 children in her home village.

3.In 2010 she divorced her former husband, and in order to make her living and to support her children, the Applicant went to Singapore to work as a housemaid for several years before returning to Indonesia where she in 2016 met and cohabited with her boyfriend in Bekasi.

4.Due to his bad temper and frequent abuses the Applicant in 2017 left her boyfriend to return to live with her parents, of which her boyfriend was furious and repeatedly demanded her to return with threats, and to avoid his constant threats and harassments the Applicant left Indonesia in December 2018 to come to Hong Kong to work as a foreign domestic helper.

5.However, after her employment was prematurely terminated in December 2019, the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong, during which she met and subsequently married a Hong Kong resident on 21 May 2021, and when it was discovered by her former boyfriend on social media, he then threatened to kill the Applicant when she returned to Indonesia, and so upon her subsequent arrest by the police, the Applicant then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 21 July 2021 and attended screening interview before the Immigration Department with legal representation.

6.By a Notice of Decision dated 9 August 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”).

7.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 she would be in danger of being harmed or killed by her former boyfriend 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 her former boyfriend to seriously harm or kill her other than some angry words and empty threats, that in any event it was a private relationship dispute between just the 2 of them 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 former boyfriend to locate her.

8.On 17 August 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 31 December 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board and with submissions made on her behalf by her lawyer. On 14 June 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board accepted the Applicant’s claim of domestic abuse by her former boyfriend but found no reliable evidence of any real intention of him to seriously harm or kill her other than angry words and empty threats, and that in any event it was a private personal dispute between just the 2 of them without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia if resorted to as well as reasonable support and assistances from various governmental departments and NGOs for women in need that it is not accepted that the Applicant will face any proscribed forms of harm from anyone upon her return to Indonesia that the Board concluded that her claim for non-refoulement protection failed on all applicable grounds.

10.On 30 June 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 in her supporting affirmation of the same date to which she just attached a copy of the Board’s decision 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.

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 fact is that it has been correctly established by both the Director and the Board in their respective decisions that her problem with her former boyfriend was a private relationship dispute between just the 2 of them without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia, as well as the correct finding by the Director that her claimed risk even if real is a localized one 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.

13.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.

14.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.

15.As the Court has recently been informed by the Immigration Department that the Applicant has subsequently been removed from Hong Kong to her home country, I therefore direct that a request be made to the Director to use his best endeavour to forward a copy of this decision together with the sealed order to the Applicant in Indonesia.

Dated the 8^th day of April 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