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Intan-dwi-nopitasari v Torture Claims Appeal Board [Decision On Leave Application]

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date16 September 2021
Neutral Citation[2021] HKCFI 2794
Year2021
Judgement NumberHCAL954/2021
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL954/2021 INTAN-DWI-NOPITASARI v. TORTURE CLAIMS APPEAL BOARD

HCAL 954/2021

[2021] HKCFI 2794

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 954 of 2021

BETWEEN

Intan-Dwi-Nopitasari Applicant
and
Torture Claims Appeal Board Putative Respondent
and
Director of Immigration Putative Interested Party

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1. The Applicant is a 34-year-old national of Indonesia who last arrived in Hong Kong on 2 September 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 2 September 2016 or within 14 days of its early termination, but when her employment was prematurely terminated on 16 January 2015, she did not depart and instead overstayed and was arrested by police on 13 April 2015 for the offences of soliciting for immoral purpose and breach of conditions of stay for which she was subsequently convicted and sentenced to prison for 2 months, during which she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her creditor over her outstanding debts, but after it had been rejected, and whilst being released on recognizance, she formed a relationship with a Bangladeshi man who was also an asylum seeker in Hong Kong, out of which she later gave birth to their daughter in 2018 and for whom she then made a non-refoulement claim as well as a subsequent claim for herself on the same basis as before and also for fear of being harmed by her former boyfriend from Indonesia and of discrimination by her local community due to her daughter being an illegitimate child if refouled to Indonesia.

2. The Applicant was born and raised in Kertosari, Geger, Madium, East Java, Indonesia. After leaving school she worked as a baby-sitter in her home district before moving to Singapore to work as a domestic helper for two years.

3. In 2012 she returned to Indonesia and applied to work as a foreign domestic helper in Hong Kong, and in 2014 she borrowed a loan from a money-lender to pay for her employment agency fees and for her siblings’ education to be repaid within 4 years by monthly instalments together with interests before travelling to Hong Kong for her employment contract in September 2014.

4. On 16 January 2015 her employment was prematurely terminated, but the Applicant did not depart Hong Kong as she was without any income to make her loan repayment, and for which she had been threatened by her creditor that she would be killed if returned to Indonesia.

5. After she was arrested by police on 13 April 2015 for the offence of soliciting for immoral purpose and breaching condition of stay for which she was subsequently convicted and sentenced to prison for 2 months, she then raised a non-refoulement claim on the basis that she would be harmed or killed by her creditor upon her return to Indonesia, which claim was rejected by the Director of Immigration (“Director”) on 23 May 2017, while her appeal was subsequently also dismissed by the Torture Claims Appeal Board (“Board”).

6. Upon her discharge from prison and whilst being released on recognizance pending the determination of her claim, the Applicant formed a relationship with a Bangladeshi man who was himself also an asylum seeker in Hong Kong, and in early 2017 she became pregnant with their child, but later in the same year the Applicant was arrested by police for drug trafficking for which she was convicted on 31 October 2018 and sentenced to prison for 54 months.

7. Meanwhile earlier on 21 January 2018 the Applicant gave birth to her...

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