SARI OLIVIA MUTIARA v. TORTURE CLAIMS APPEAL BOARD

HCAL 753/2021

[2026] HKCFI 1578

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 753 OF 2021

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 36-year-old national of Indonesia who last arrived in Hong Kong on 2 October 2019 as a visitor with permission to remain until 3 October 2019 when she did not depart and instead overstayed, and on 11 February 2020 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Indonesia she would be harmed or killed by her husband over her affair with another man in Hong Kong and/or her husband’s creditor for failing to repay her husband’s debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Tanjung Karang Regency, Bandar Lampung, South Sumatra, Indonesia. After leaving school she worked in a garment factory, married her husband and raised a family with a son in her husband’s home district in Dusun Tempursari, Sukoanyar Kec Kediri.

3.  During the marriage she found her husband to be of bad temper and would be violent and abusive towards her at will, and in order to stay away from his abuses the Applicant in January 2017 departed Indonesia for Hong Kong to work as a foreign domestic helper, and after her employment in Hong Kong was terminated, she then went to Macau in September 2017 to work as a restaurant waitress, during which she met a man from Hong Kong and formed a relationship with him.

4.  In September 2019, she received some threatening phone calls from some man demanding her to repay her husband’s debts, and later when she confronted her husband on the phone, he admitted of borrowing money in her name from some local money-lender but subsequently unable to repay which then caused his creditor to make those threats against her, and for which he demanded for money from her to repay his debts, and when she refused, he then threatened to kill her when she returned to Indonesia.

5.  Fearing that she would be located by her husband or his creditor in Macau, the Applicant in October 2019 returned to Hong Kong and subsequently overstayed, and later when her affair was discovered by her husband who became furious and again threatened to kill her when she returned to Hong Kong, and so in February 2020 she surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 18 June 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 15 July 2020, 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”).

7.  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 husband or his creditor upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of either of her husband or his creditor to seriously harm or kill her other than angry words and empty threats, that in any event these were private monetary or domestic disputes between 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 267 million people spread across a vast territory 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 or his creditor to locate her.

8.  On 21 July 2020, 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 4 January 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 10 May 2021 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1], the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her husband or his creditor that caused her to overstay in Hong Kong to seek protection, that there was no reliable evidence of any real intention of either of them to seriously harm or kill her other than angry words and empty threats, and that in any event these were private monetary or domestic disputes between 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 anyone that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 24 May 2021, 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, nor was she able to do so at the hearing of her application. 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.

11.  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.

12.  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 risks of harm in her claim even if real are localized ones and that it is not unreasonable or unsafe for her to relocate to other part 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.

13.  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.

14.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her 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