Tri Mulyaningsih Alias Tri, Mulyaningsih Alias Tri-mulyaningsih v. Torture Claims Appeal Board

HCAL 963/2025

[2025] HKCFI 2785

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 963 OF 2025

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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 52-year-old national of Indonesia who last arrived in Hong Kong on 8 June 2012 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 8 June 2014 or within 14 days of its early termination, but when her employment was prematurely terminated on 5 October 2012, she did not depart and instead overstayed, and was arrested by police on 8 March 2015, and for which she was subsequently convicted and sentenced to prison for 10 weeks. After her discharge from prison and was referred 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 brother over their personal dispute. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Kendal, Jawa Tengah, Indonesia. After leaving school she in 2008 started to come to Hong Kong to work as foreign domestic helper to make her living.

3.In 2012 while working in Hong Kong, she helped her fellow Indonesian friend to borrow a small loan from a local finance company in Hong Kong to be repaid by her friend by monthly instalments with interests, but later when her friend left Hong Kong without paying off the loan, and when the finance company started to send letters to the Applicant’s home address in Indonesia demanding for repayment of the loan, and even on one occasion sent a representative to her home in Indonesia looking for her for repayment, which caused disturbances to her mother and her elder brother, and for which her brother rebuked and reprimanded her.

4.One day in September 2013 she received an angry telephone call from her brother informing her that her mother had fallen sick and was hospitalized due to the disturbances caused by the Applicant’s creditor, and threatened to kill her when she returned to Indonesia.      

5.As a result the Applicant became fearful for her safety, and when her last employment was prematurely terminated in October 2012, she was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she subsequently completed a Non-refoulement Claim Form (“NCF”) on 15 July 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

6.Whilst released on recognizance pending the determination of her claim, the Applicant subsequently failed to report on her recognizance and absconded on 14 March 2016 until her arrest some 8 years later on 13 March 2024, and for which she was convicted and sentenced to prison for 15 months.              

7.By a Notice of Decision dated 27 August 2024 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 brother upon her return to Indonesia as low due to the absence of any past ill-treatment from him other than some angry words and empty threats uttered in just one telephone call, that there is no evidence of any real intention of him to seriously harm or kill her arising from just that call, that in any event it was a private and personal dispute between just 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 280 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 brother to locate her.

9.On 21 October 2024 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 13 December 2024 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 27 December 2024 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board found no reliable evidence of any real intention of her brother to seriously harm or kill her other than some angry words and empty threats uttered in just one telephone call, and that in any event it was a private and personal dispute between just 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 that her claim for non-refoulement protection failed on all applicable grounds.    

11.On 22 April 2025 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 merely repeated her claimed fear of harm as before but without putting forth any proper ground for her intended challenge.     

12.By then the Applicant was also out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

13.As the last day of the three-month period for her to file her Form 86 fell on 27 March 2025, the Applicant was therefore almost 1 month late with her application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

14.In the Applicant’s case, a delay of almost 1 month must be considered as substantial and inordinate, for which she explained at the hearing of her application that she had since January 2024 been detained by the Immigration Department, and as a layman without legal representation that she was not aware of the deadline to file her application.

15.While it is accepted that the Applicant was at the material time under detention, as the decision was sent on the same day of 27 December 2024 to her via the Correctional Services Department, but ignorance of the law or procedural requirements can never be accepted as any justification for her non-compliances, and with assistances and supports from stationed welfare officers available to her, I am not satisfied that the Applicant has been able to provide any good or valid reason for her serious delay.      

16.As for the merits, if any, of her intended application, as noted above that the Applicant failed to put forward any proper ground in her Form or affirmation, 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 merits in her intended application either.

17.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.

18.In the Applicant’s case, the fact is that it has also been established by the Director in his decision that the risk of harm in her claim 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.                

19.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.

20.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 the absence of any good reason for her serious delay, I refuse to grant leave and accordingly dismiss her application.

Dated the 15^th day of July 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