Rumini v. Torture Claims Appeal Board
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HCAL 2698/2019 [2025] HKCFI 2289 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2698 OF 2019
Application for Leave to Apply for Judicial Review Following:
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 45-year-old national of Indonesia who last arrived in Hong Kong on 1 February 2008 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 prematurely terminated on 23 April 2008, she did not depart and instead overstayed, and was arrested by police more than 2 years later on 17 May 2010, and for which she was subsequently convicted and sentenced to prison for 4 months. After her discharge from prison and was referred to the Immigration Department for deportation, she raised a torture claim on the basis that if she returned to Indonesia she would be harmed or killed by her husband for failing to give him money to repay his debts and/or by his creditor over his unpaid debts, and after her torture claim was rejected, she then sought non-refoulement protection on the same basis and with additional fear of being harmed or persecuted by the Muslim community for being a lesbian and with a girlfriend in Hong Kong. She was subsequently released on recognizance pending the determination of her claim. 2.The Applicant was born and raised as a Muslim in Malang, Jatim, Indonesia. After leaving school she assisted in her parents’ farming, married her husband and raised their family with a daughter in her home district. 3.However, soon she discovered that her husband was frequently out of work and in debts but instead indulged in drinking, and when he was drunk he would become violent and abusive towards her, and in order to support her family, the Applicant started to work as a house maid in various towns and cities. 4.In 2003 her husband moved to live with another woman in another village in Malang, but continued to demand money from the Applicant to help him to repay his creditor who had also come to her parents’ place to demand for repayment of her husband’s debts with threats against her parents, and in order to earn more money the Applicant in October 2005 came to Hong Kong to work as a foreign domestic helper, during which she proposed to divorce her husband but he became furious and threatened to kill her should she dare to do so. 5.Upon completing her first employment contract in December 2007, the Applicant returned to Indonesia but did not return to her home to avoid her husband who however was able to locate her and demanded money from her with threats of violence, and so in February 2008 she returned to Hong Kong to start another employment contract. 6.However, when her employment was subsequently terminated in April 2008, the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her arrest by the police in 2010 and was subsequently convicted and put in prison for 4 months, during which she raised her torture claim, and was later released on recognizance pending the determination of her torture claim. 7.After her torture claim was rejected by the Immigration Department in December 2010, the Applicant then sought non-refoulement protection for protection on the same basis, and while released on recognizance pending the determination of her claim, she met and formed a lesbian relationship with a woman in Hong Kong who is a local resident, of which she added to her non-refoulement claim of her fear of risk of harm and persecution from the Muslim community in Indonesia, and for which she completed a Supplementary Claim Form (“NCF”) on 9 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 8.By a Notice of Decision dated 29 March 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”). 9.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 risk of her being harmed or ill-treated by her husband or his creditor or of any discrimination from the Muslim community upon her return to Indonesia due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her husband or his creditor to seriously harm or kill her other than to press her for money to repay her husband’s debts which was just a private monetary dispute between her and her husband or his creditor 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”) also show that the laws in Indonesia do not prohibit private non-commercial homosexual relations between consenting adults and that state protection and supports are also available to the LGBT community, while reasonable internal relocation alternatives are also available in Indonesia with a large population of 260 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. 10.On 9 April 2018 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 January 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board, while her female partner also gave evidence as her witness in support of her claim. On 30 August 2019 the Board allowed her appeal as regard BOR 3 and persecution risks but not the BOR 2 risk, and according reversed the Director’s decision. 11.In its decision the Board accepted the Applicant’s claim of domestic disputes with her husband but found no reliable evidence of any real intention of him or his creditor to seriously harm or kill her, nor is it accepted that they would still have any adverse interest in her after all these years since she left the country in 2008, and that in any event it was a private monetary dispute between them 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 husband or his creditor, but as regard her claimed risks of ill-treatment and persecution by the Muslim community over her sexual orientation, the Board accepted the Applicant’s claim of being a lesbian and in a relationship with another woman in Hong Kong, and found from the latest relevant COI an increasing hostility in Indonesia towards LGBT individuals coupled with the implementation of local by-laws and use of other legislation targeting LGBT individuals as well as the possibility that Indonesian’s Parliament may seek to introduce provisions leading to such criminalization that it is not satisfied that the Applicant would be able to seek adequate police protection or to reasonably relocate to other areas of Indonesia where she would not face any real risk of CIDTP, and concluded that the she will face a genuine and substantial risk of BOR 3 and persecution from the Muslim community for reason of her membership of a particular social group upon her return to Indonesia that it allowed her appeal under those grounds and accordingly reversed the Director’s decision dated 29 March 2018. 12.Yet on 16 September 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward various grounds for her intended challenge of the decision but most being just bare assertions without any necessary or relevant details or particulars or elaborations as to why or how they would apply to her case. 13.At the hearing of her application, the Applicant confirmed that she has in fact already been granted refugee status by the UNHCR, and produced a copy of her such certificate as evidence, and hence she informed the Court that as a layman without legal representation she was not sure whether she should still proceed with her leave application given that her appeal to the Board was successful only as to BOR 3 and persecution grounds but not BOR 2, and that she therefore asked the Court to decide whether it would be appropriate for her to withdraw her application for her intended challenge of the Board’s decision as regard the BOR 2 ground. 14.Given the fact that the Board’s decision has allowed her appeal as regard the more relevant BOR 3 and persecution grounds and accordingly reversed the Director’s decision, while on the factual bases of her case that the Applicant’s claim did not in my view engage the BOR 2 ground due to its limited scope, I am satisfied that it would not serve any useful purpose for the Applicant to proceed with her intended challenge thereof, nor has she demonstrated any reasonably arguable ground to do so, and therefore dismiss her leave application. Dated the 12th day of June 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
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