HCAL 937/2024

[2024] HKCFI 2249

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 937 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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1. The Applicant is a 31-year-old national of Indonesia who arrived in Hong Kong on 18 July 2022 with permission to work as a foreign domestic helper until the expiration of his employment contract on 18 July 2024 or within 14 days of its early termination, but when his employment was prematurely terminated on 14 September 2022, he did not depart and instead overstayed, and was arrested by police on 3 May 2023 for which he was subsequently convicted and sentenced to prison for 15 months, during which he raised a non-refoulement claim for protection to the Immigration Department on the basis that if he returned to Indonesia he would be harmed or killed by his creditor over his unpaid debts.

2. The Applicant was born and raised in Bone, Sulawesi, Selatan, Indonesia. After leaving school he worked as a farmer, got married and raised a family with a child in his home district.

3. In May 2022 he applied to come to Hong Kong to work as a foreign domestic helper, and to meet the expenses he borrowed a loan from a local money-lender to be repaid by monthly installments with interests from his monthly salary in Hong Kong by remittances to his wife in Indonesia.

4. However, after his employment was prematurely terminated in September 2022, and when he was unable to repay his loan for which his creditor threatened on the phone to kill him when he returned to Indonesia, the Applicant became fearful to return to Indonesia and therefore overstayed in Hong Kong, and upon his subsequent arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 2 January 2024 and attended screening interview before the Immigration Department with legal representation.

5. By a Notice of Decision dated 6 February 2024 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 his 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 i