WIHARNI v. TORTURE CLAIMS APPEAL BOARD

HCAL 536/2023

[2025] HKCFI 5585

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 536 OF 2023

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;

The Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 54-year-old national of Indonesia who last arrived in Hong Kong on 18 March 2016 as a visitor with permission to remain as such up to 17 April 2016 when she did not depart and instead overstayed, and was arrested by police more than 6 years later on 12 May 2022, and for which she was subsequently convicted and sentenced to prison for 6 months, during which she raised a non-refoulement claim for protection to the Immigration Department on the basis that if she returned to Indonesia she would be harmed or killed by her abusive husband due to their domestic disputes.  

2.  The Applicant was born and raised in Desa Karang Jati, Susukam Kab, Banjar Negara, Jawa Tengah, Indonesia. After leaving school she married her husband and raised a family with 5 children in her home district.

3.  However, throughout their marriage her husband had been abusive towards her, in particularly when he was drunk or after losing money in gambling when he would slap and hit her at will.

4.  In 2007 her husband stopped giving her money for her use, and after being beaten badly by him later in the same year, the Applicant decided to leave him by going to work in Singapore as a domestic helper until 2009 when she returned to stay at her parents’ home, but when she was later informed by a friend that her husband was furious at her for leaving him and had threatened to kill her, the Applicant became fearful for her life and therefore departed Indonesia again in December 2009 for Hong Kong to work as a foreign domestic helper, but upon the completion of her last employment she was afraid to return to Indonesia and therefore travelled to China before returning to Hong Kong as a visitor and overstayed, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 1 August 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.  By a Notice of Decision dated 18 August 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”).

6.  In her 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 husband upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her husband to seriously harm or kill her other than angry words and empty threats, that in any event it was a private domestic dispute between just the 2 of them 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 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 where it would be difficult if not impossible for her husband to locate her.

7.  On 5 September 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 17 January 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 17 February 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1] the Board accepted the Applicant’s claim of fear of harm from her abusive husband but found no reliable evidence of any real intention of her husband to seriously harm or kill her other than just angry words and empty threats or that he would still have any adverse interest in her after all these years since she left him in 2007, and that in any event it was a private domestic dispute between just the 2 of 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 by her husband that her claim for non-refoulement protection failed on all applicable grounds.    

9.  On 3 April 2023 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 to which she just attached a copy of the decision 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.

10.  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.

11.  In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law 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 to challenge the finding of the Board.

12.  Furthermore, 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, 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 20 October 2025 filed an affirmation requesting to withdraw her application as she now wants to return to her home country.

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 her wish to return to her home country, I accordingly dismiss her leave application.

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