MAHMUDAH ELIS v. TORTURE CLAIMS APPEAL BOARD

HCAL 2238/2023

[2026] HKCFI 1930

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2238 OF 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 47-year-old national of Indonesia who last arrived in Hong Kong on 12 August 2018 with permission to continue 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 10 July 2022, she did not depart and instead overstayed, and was arrested by police on 18 October 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 creditor for failing to repay her debts and/or by the Muslim community due to her sexual orientation as a lesbian. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in a village in DS. Melati Kusuma, Gunung Tanjung, Tasikmalaya, West Java, Indonesia, and while at school she discovered her sexual orientation as a lesbian but which she kept as a secret from everybody including her family.

3.  After leaving school she worked in various jobs in her home village to make her living, and in 2018 she started to come to Hong Kong to work as a foreign domestic helper.

4.  In 2021 her parents borrowed a loan from some local money-lender to pay for the repair of their family house, and to be repaid within 2 years and with monthly interests payments which the Applicant helped her parents to pay by making remittance to them every month from Hong Kong.

5.  However, later when her parents’ creditor demanded for the repayment of the loan but which her parents were unable to, their creditor then demanded that they should marry the Applicant to him in satisfaction of the loan, but to which the Applicant refused and instead revealed to her parents that she was in fact a lesbian and was in a relationship with another woman in Hong Kong, whereupon their creditor still insisted that either the Applicant repaid her parents’ loan or marry him in lieu of repayment, otherwise he would kill her when she returned to Indonesia.       

6.  As a result the Applicant became fearful for her safety, and when her last employment was prematurely terminated in July 2022, she was afraid to return to Indonesia and therefore overstayed in Hong Kong, 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 8 December 2022 and attended screening interview before the Immigration Department with legal representation.             

7.  By a Notice of Decision dated 27 January 2023 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 parents’ creditor upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her parents’ creditor to seriously harm or kill her other than to press her to repay her parents’ loan, that in any event it was a private monetary dispute between her parents and their 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”) 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 anyone to locate her.

9.  On 7 February 2023 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 29 June 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board, while her alleged partner also attended the hearing as a witness and gave evidence to the Board about her relationship with the Applicant.  On 8 December 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 as to her sexual orientation and in a lesbian relationship with another woman in Hong Kong but found no reliable evidence of her having faced any serious harm in the past in her home country and that relevant COI did not suggest that there would be any real risk that she would suffer any serious harm as a lesbian beyond general harassment or discrimination for community/cultural or religious reasons if refouled to Indonesia but without any real risk of any of the Proscribed Harms under any of the applicable grounds that her claim for non-refoulement protection failed on all applicable grounds.    

11.  On 13 December 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 various complaints for her intended challenge which can be summarized as follows:

(1)   That the Adjudicator failed to consider the Applicant’s claim or address the issues properly and just came up with the assessment on more or less of a template basis;

(2)   That the hearing bundle served on the Applicant was without translations and without explaining the contents of those documents to the Applicant which was detrimental to her case;

(3)   That the Board wrongly assessed that state protection would be available to the Applicant upon her return to Indonesia without realizing that in Indonesia it is not possible to get justice without paying bribes to the officials but which the Applicant cannot afford to do;

(4)   That the Board wrongfully refused to accept the Applicant’s fear of being harmed in her home country is genuine without proper reasons and wrongfully exercised its case management power by placing too much weight on the COI as to the availability of state protection.        

12.  These are however just bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant 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 how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI. 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 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.

14.  In the Applicant’s case, the Board accepted the Applicant’s evidence about her sexual orientation but found no reliable evidence that she would face any real risk of harm or ill-treatment for being a lesbian upon her return to Indonesia for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim as well as the relevant COI, 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.

15.  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 his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of , there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

16.  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.

17.  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.

18.  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.

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