Wiyarto Farida Zubaida v. Torture Claims Appeal Board

HCAL 771/2024

[2025] HKCFI 2970

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 771 OF 2024

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 35-year-old national of Indonesia who arrived in Hong Kong on 12 January 2022 with permission to work as a foreign domestic helper until the expiration of her employment contract on 12 January 2024 or within 14 days of its early termination, but when her employment was prematurely terminated on 30 June 2022, she did not depart and instead overstayed, and was arrested by police on 14 September 2023. 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 creditors over her unpaid debts.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Simpang Ranan, Sumberejo, Tanggamus, Lampung, Indonesia. After leaving school she worked as a farmer and in the factory, married her husband and raised a family with 2 children in her husband’s home district in Seputih Agung, Lampung.

3.In 2020 her husband lost his job and was in huge gambling debts, and for which the Applicant settled for him with the help of a loan borrowed from a local money-lender, and for the repayment of the loan the Applicant in January 2022 came to Hong Kong to work as a foreign domestic helper and to remit money to her family in Indonesia for her loan repayment by monthly instalments.

4.In April 2022 she borrowed another loan from another money-lender for her son’s medical expenses, and for which she also repaid by monthly instalments from her salary.   

5.However, after her employment was prematurely terminated on 30 June 2022, and when she was without income to repay her debts, her creditors sent men to her home in Indonesia to threaten to kill her, and as a result 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 completed a Non-refoulement Claim Form (“NCF”) on 3 November 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.By a Notice of Decision dated 13 December 2023 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 assessed the level of risk of harm from her creditors upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from her creditors, that there is no evidence of any real intention of her creditors to seriously harm or kill her other than to press her to repay her debts, that in any event these were private monetary disputes between her and her creditors 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 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 where it would be difficult if not impossible for her creditors to locate her.

8.On 18 December 2023 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 11 March 2024 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 10 May 2024 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 fear of harm from her creditors over her unpaid debts but found no reliable evidence of any real intention of her creditors to seriously harm or kill her other than to press her to repay her debts, and that in any event these were private monetary disputes between her and her creditors only  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 creditors that her claim for non-refoulement protection failed on all applicable grounds.    

10.On 16 May 2024 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 just repeated her claim as before 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 of the Board’s decision.

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 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 12 May 2025 in writing requested to withdraw her application as her issue in her home country has been resolved that she now wants to return to Indonesia as soon as possible.

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 of no more problem for her to return to her home country, I accordingly dismiss her leave application. 

Dated the 29^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