Fitriani v. Torture Claims Appeal Board
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HCAL 1233/2023 [2026] HKCFI 4674 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1233 OF 2023 BETWEEN
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:
Observations for the Applicant: 1.The Applicant is a 39-year-old national of Indonesia who arrived in Hong Kong on 3 January 2019 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment was prematurely terminated on 23 January 2022, she did not depart and instead overstayed, and was arrested by police on 14 April 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 former husband’s creditor over her husband’s unpaid debts. She was subsequently released on recognizance pending the determination of her claim. 2.The Applicant was born and raised in Malang, Indonesia. After leaving school she married her husband and raised a family with their daughter in her husband’s home district in Desa Polehan, Kecamatan Blimbing. 3.In 2018 her husband started his own grocery store business in Malang with the help of a loan which he borrowed from some local money-lender to be repaid within 3 years and with monthly interest payments which he initially managed to make from his business income. 4.Unfortunately, his business did not fare well, and by late 2018 he started to default in his loan repayments, and so the Applicant was required by him to work in Hong Kong as a foreign domestic helper to help him to repay his debts, which she subsequently did in January 2019 when she arrived in Hong Kong to start her employment and to remit money to her husband in Indonesia every month to help him to repay his debts by instalments. 5.However, in early 2021 the Applicant was informed by her sister in Indonesia that her husband’s creditor had sent men to her home in Malang looking for her for repayment of her husband’s debts as he had never repaid his loan with the monthly sums which she remitted to him and had just disappeared with the money. 6.As a result the Applicant became fearful for her safety and subsequently divorced her husband, but after her last employment was prematurely terminated in January 2022, she was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police in April 2022 she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 10 May 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 7.By a Notice of Decision dated 28 June 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”). 8.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her former husband’s creditor over his debts upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from his creditor, that there is no evidence of any real intention of his creditor to seriously harm or kill her other than to press her to repay his debts, that in any event it was a private monetary dispute between her former husband and his creditor 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”) shows 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 or Surabaya where it would be difficult if not impossible for anyone to locate her. 9.On 8 July 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 2 June 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 14 July 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision. 10.In its decision[1] the Board accepted the Applicant’s claim of fear of harm from her former husband’s creditor over his debts but found no reliable evidence of any real intention of his creditor to seriously harm or kill her other than to press her to repay her former husband’s debts, and that in any event it was a private monetary dispute between her former husband and his creditor 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 anyone that her claim for non-refoulement protection failed on all applicable grounds. 11.On 20 July 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:
12.These are however just some bald 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 what documents that the Adjudicator had refused to allow the Applicant to submit without translations when the record shows that the Applicant never did so during the hearing, or in what way was the interpreter impatient or unhelpful towards her during the hearing. 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. 13.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 her 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. 14.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 parts 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. 15.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. 16.Moreover, the Applicant has recently in writing requested to withdraw her application as her issues in her home country have been resolved that she now wants to return to Indonesia as soon as possible. 17.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 issue for her to return to her home country, I accordingly dismiss her leave application. Dated the 19th day of August 2026
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
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Cases cited in this judgment