Muttaqinah v. Torture Claims Appeal Board

HCAL 562/2023

[2025] HKCFI 2864

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 562 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 42-year-old national of Indonesia who last arrived in Hong Kong on 10 December 2018 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 upon the completion of her last employment, the Applicant did not depart and instead overstayed since 16 February 2022, and was arrested by police on 7 July 2022. 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 husband or his creditor over her husband’s debts. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Jatisari Hamlet, Bomo Village, Blimbing Sari Sub-district, Banyuwangi Regency, Indonesia. After leaving school she married her husband, and raised a family with 2 children in her home district.

3.As her husband did not often have jobs or regular income and was often in debts, the Applicant in 2010 decided to help support the family by working as a domestic servant in Taiwan and also in Hong Kong as a foreign domestic helper by remitting part of her salaries to her husband in Indonesia every month to assist him in repaying his debts by instalments.

4.However, after she completed her last employment in February 2022 in Hong Kong and was unable to find further employment, and when her was unable to remit any money to her husband in Indonesia, he threatened her on the phone that he and his creditor would kill her, and so the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 9 September 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 7 October 2022 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”).

6.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 or his creditor upon her return to Indonesia as low 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 either of them to seriously harm or kill her other than to press her for money, that in any event it was a private monetary dispute between the 3 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 277 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 or his creditor to locate her.

7.On 25 October 2022 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 17 January 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 23 March 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.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 that caused her to overstay in Hong Kong to seek protection, that there was no reliable evidence of any real intention of to seriously harm or kill her, and that in any event it was a private dispute between them 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 that her claim for non-refoulement protection failed on all applicable grounds.

9.On 11 April 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 failed to properly consider the Applicant’s claim and just dismissed it without taking time to consider the risk to her life in her home country;

(2)  That the Adjudicator unreasonably refused to give the Applicant time to prepare for her appeal before the Board or to arrange for translation of those documents that she wished to produce in support of her claim;

(3)  That the interpreter was unhelpful and impatient in interpreting the Applicant’s evidence at the hearing of her appeal before the Board.

10.These are however all just 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 was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to give her time or to allow her to submit her documents or what documents are they as none has been identified by the Applicant even up to now in her present application, or how did the interpreter fail to help or assist her in interpreting her evidence given during her appeal hearing when the record never shows any complaint or issues raised by the Applicant during her appeal hearing 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.

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 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.

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.Moreover, the Applicant recently on 3 March 2025 in writing requested to withdraw her application as her problem in her home country has been resolved that it is now safe for her to return to Indonesia.

15.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 that it is now safe for her to return to her home country, I accordingly dismiss her leave application.

Dated the 24^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