WAHYUNING RESTI v. TORTURE CLAIMS APPEAL BOARD

HCAL 446/2023

[2026] HKCFI 1497

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 446 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 32-year-old national of Indonesia who last arrived in Hong Kong on 8 December 2019 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 27 January 2021 or within 14 days of its early termination, but when her employment was prematurely terminated on 24 July 2020, she did not depart and instead overstayed, and was arrested by police on 18 October 2020. 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 mother’s creditor for failing to help her mother to repay her mother’s debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Tawing, Kec Munjungan, Kota Trenggalek, Kab Trenggalek, Jawa Timur, Indonesia. After leaving school she in 2017 started coming to Hong Kong to work as a foreign domestic helper to make her living and to remit money to her mother in Indonesia for her support after the passing of her father due to illness.

3.  In August 2020, she was informed by her mother that back in 2013 her mother had borrowed some loan from a local money-lender for her father’s medical and burial expenses for which her mother used to repay by monthly instalments, but recently her creditor had pressed her to pay off the remaining balance of the loan in one go, and if it was unable for her to do so, her mother should then marry the Applicant to him in lieu of the repayment, and when the Applicant refused, the creditor then threatened to kill her when she returned to Indonesia.

4.  Henceforth after her last employment was prematurely terminated on 24 July 2020, the Applicant 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 7 June 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 13 July 2021, 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 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 mother’s creditor upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from the creditor, that there is no evidence of any real intention of the creditor to seriously harm or kill her other than to press her to repay her mother’s debts, that in any event it was a private monetary dispute between her mother and her 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 260 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 or Bali where it would be difficult if not impossible for her mother’s creditor to locate her.

7.  On 27 July 2021, 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 13 October 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 2 March 2023, her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  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 mother’s creditor that caused her to overstay in Hong Kong to seek protection, that even if her account of threats from her mother’s creditor were true that there was no reliable evidence of any real intention of her mother’s creditor to seriously harm or kill her other than to press her to repay her mother’s debts, and that in any event it was a private monetary dispute between her mother and her creditor 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 mother’s creditor that her claim for non-refoulement protection failed on all applicable grounds.

9.  On 22 March 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 in which she just repeated her claim as before 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 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.

11.  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 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 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.

12.  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.

13.  Moreover, the Applicant has recently on 10 February 2026 filed an affirmation requesting to withdraw her application as it is now safe for her to return to her home country.

14.  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 that it is safe 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