Rahayu Winarni Azissudin v. Torture Claims Appeal Board
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HCAL 1729/2020 [2025] HKCFI 3954 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1729 OF 2020
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Bruno Chan:
Observations for the Applicant: 1.The Applicant is a 48-year-old national of Indonesia who last arrived in Hong Kong on 6 March 2016 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 5 February 2017 whereupon she did not depart and instead overstayed, and after her subsequent arrest and 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 creditor over her unpaid debts and/or by the Muslim villagers in her home village over her affair with a married man in Hong Kong and for given birth to 4 children out of wedlock contrary to the teachings of Islam. She was subsequently released on recognizance pending the determination of her claim. 2.The Applicant was born and raised as a Muslim in Cilacap, Central Java, Indonesia. After leaving school she came to Hong Kong to work as a foreign domestic helper until 2000 when she returned to her home village to stay with her parents. 3.In 2006 she planned to resume working in Hong Kong as a foreign domestic helper, and to meet the necessary expenses and agency fees, she borrowed a loan from a local money-lender to be repaid by monthly instalments with interests which she planned to do by remitting money to her parents from her salary to be earned in Hong Kong. 4.Accordingly in 2007 she returned to Hong Kong to resume her job as a foreign domestic helper and to remit money from her monthly salary to her parents to repay her loan by instalments to her creditor in Indonesia. 5.During her stay in Hong Kong, the Applicant met and formed a relationship with a Pakistani man who was already married and a permanent resident, and with whom she subsequently gave birth to 4 children in Hong Kong, but when she later informed her parents, they disapproved her conduct as unbecoming and contrary to the teachings of Islam, and warned her not to return to Indonesia for fear of being harmed or killed by her fellow Muslim villagers. 6.After her last employment was terminated in February 2017, the Applicant was income to remit money to her parents to repay her loan, and for which her creditor threatened to kill her when she returned to Indonesia, and so the Applicant became fearful for her life and 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 11 September 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 7.By a Notice of Decision dated 23 November 2018 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 creditor or fellow Muslim villagers 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 her creditor to seriously harm or kill her other than to press her to repay her debts, nor was there any evidence of any threats ever made by her fellow villagers against her other than her parents’ own speculations, that in any event these were private and personal disputes between her creditor and fellow villagers 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 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. 9.On 6 December 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 24 May 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 3 January 2020 her appeal was dismissed by the Board which also confirmed the Director’s decision. 10.In its decision[1] 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 any creditor or villagers that caused her to overstay in Hong Kong to seek protection, that even if her account of events in Indonesia were true that there was no reliable evidence of any real intention of her creditor or fellow villagers to seriously harm or kill her, and that in any event these were private and personal disputes between them 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 that her claim for non-refoulement protection failed on all applicable grounds. 11.On 26 August 2020 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 stated that she rejects the decision as it disregarded her dangerous situation but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application. 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 3 April 2020, the Applicant was therefore more than 4 months 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 more than 4 months must be considered as very substantial and inordinate, for which she did not provide any explanation or reasons in her Form or affirmation, and as the record shows that the decision was sent on the same day of 3 January 2020 to her then reported address without being returned through undelivered post, I am unable to see any good or valid reason for her such serious delay. 15.As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for her intended challenge, and in the absence of any error 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. 16.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. 17.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 risks of harm in her claim even if real are localized ones 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. 18.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. 19.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 such serious delay, I refuse to extend time and accordingly dismiss her leave application. Dated the 8thday of September 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 |
Cases cited in this judgment