Wati Susilawati v. Torture Claims Appeal Board
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HCAL 1428/2021 [2025] HKCFI 2815 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1428 OF 2021
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord 53 r 3) 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 49-year-old national of Indonesia who last arrived in Hong Kong on 3 January 2009 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 22 October 2010 or within 14 days of its early termination, but when her employment was prematurely terminated on 20 August 2009, she did not depart and instead overstayed, and was arrested by police on 6 May 2010. After she was referred to the Immigration Department for investigation, she raised a torture claim on the basis that if she returned to Indonesia she would be harmed or killed by her abusive husband over their domestic disputes, and after her torture claim was rejected, she then sought non-refoulement protection on the same basis. She was subsequently released on recognizance pending the determination of her claim. 2.The Applicant was born and raised in Kampung Maleber, Desa Jatisari, Cikampek Sub-district, Karawang Regency, West Java, Indonesia. After leaving school she worked in the factory, married her husband and raised a family with 3 children in her husband’s home district in Pagaden Sub-district, Subang Regency. 3.Soon she discovered that her husband preferred womanizing instead of working to support the family that led to constant conflicts between them, during which her husband would become violent and abusive towards the Applicant by beating her at will. 4.In 2002 in order to help support the family the Applicant went to Saudi Arabia to work as a domestic helper. 5.In 2005 she returned to Indonesia to discover that her husband had married another woman, and in order to leave him the Applicant in 2006 started to come to Hong Kong to work as a foreign domestic helper, during which she borrowed a loan from some finance company in Hong Kong but of which she subsequently defaulted with her loan repayment, and as a result her creditor sent men to Indonesia to look for her, whereupon her husband became furious for being disturbed by her creditor that he called the Applicant on the phone to threaten to kill her, and so when her last employment was prematurely terminated in August 2009, the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her arrest she then raised her non-refoulement claim for protection, for which she completed a Supplementary Claim Form (“SCF”) on 11 June 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 6.By a Notice of Decision dated 31 July 2019 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”). 7.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 husband upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her husband to seriously harm or kill her other than some angry words and empty threats uttered on the phone, that in any event these were private domestic disputes between her and her husband 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 262 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 husband to locate her. 8.On 9 August 2019 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 14 May 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 11 November 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision. 9.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 husband that caused her to overstay in Hong Kong to seek protection, that even if her account of events regarding her husband were true that there was no reliable evidence of any real intention of him to seriously harm or kill her other than some empty threats, and that in any event these were private domestic disputes between her and her husband only without any official involvement that state or police protection would be available to the Applicant upon her return to if resorted to 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. 10.However, before this decision was delivered by the Board, the Applicant earlier on 15 October 2021 filed a Form 86 for leave to apply for judicial review of the Director’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 Director’s decision but without putting forth any proper ground for her intended challenge. 11.Given the fact that the Applicant had earlier already brought her appeal to the Board against the Director’s decision, the Director’s decision is no longer susceptible to judicial review once the Applicant had pursued her appeal to the Board, as held by the Court of Appeal in Re Moshsin Ali [2018] HKCA 549, I shall for the benefit of the Applicant treat her application as one for leave to apply for judicial review of the Board’s decision instead. As such, but 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 of the Board’s decision either. 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 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. 14.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 15 April 2025 in writing requested to withdraw her application as she now wants to return to Indonesia as soon as possible. 16.In the premises, as I am for the given reasons 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 to withdraw her application as she now wants to return to Indonesia, I accordingly dismiss her leave application. Dated the 17th 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
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