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HCAL 1275/2023
[2026] HKCFI 2114
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1275 OF 2023
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BETWEEN
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Shohifah Anis |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
1. The Applicant is a 49-year-old national of Indonesia who last arrived in Hong Kong on 19 September 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 30 November 2020, she did not depart and instead overstayed, and was arrested by police more than 2 years later on 21 December 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 brother over their land dispute in her home village. She was subsequently released on recognizance pending the determination of her claim.
2. The Applicant was born and raised in Turen, Malang, East Java, Indonesia. After leaving school she worked as a factory worker in her home district until 2000 when she went to Taiwan to work as a domestic servant before coming to Hong Kong in 2010 to work as a foreign domestic helper.
3. Upon the passing of her father in 2014, her brother who was a farmer took over the management of their father’s estate including their family home and some pieces of land in their home village while the Applicant continued to work in Hong Kong.
4. One day in December 2018 the Applicant received a phone call from the village head of her home village informing her that her brother wanted to sell all the properties of their father’s estate including the Applicant’s inherited half share, but when the Applicant refused, her brother who was then sitting next to the village head became furious and shouted to the phone threatening to kill her when she returned to Indonesia, whereupon the Applicant hung up the phone and ceased all further contact with her brother.
5. However, after her last employment was prematurely terminated in November 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 6 February 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).
6. By a Notice of Decision dated 27 March 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”).
7. In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by her brother upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her brother to seriously harm or kill her other than to press her to allow him to sell her share of their father’s estate, that in any event it was a private land dispute between her and her brother and within their family 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 279 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 brother to locate her.
8. On 3 April 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 23 June 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 20 July 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.
9. In its decision[1] the Board accepted the Applicant’s claim of fear of harm from her brother over her refusal of his demand to sell their father’s estate that caused her to overstay in Hong Kong to seek protection, but found no reliable evidence of any real intention of her brother to seriously harm or kill her other than angry words and empty threats to press her to agree to his demand to sell their father’s estate, and that in any event it was a private land dispute between just the 2 of them within their family 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 brother that her claim for non-refoulement protection failed on all applicable grounds.
10. On 25 July 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 the following grounds for her intended challenge:
(1) That the Adjudicator did not consider her claim and just dismissed it directly without even taking any time to think about her life;
(2) That the Adjudicator unreasonably refused to allow her to submit her supporting documents without translations and failed to give her time to arrange for their translations;
(3) That the interpreter was impatient and unhelpful to her during her appeal hearing before the Board.
11. These are however just bare and vague assertions of the Applicant 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 what supporting documents that the Board refused to allow her to submit without translations, or in what way was the interpreter impatient and unhelpful to her during her hearing before the Board. 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.
12. 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.
13. 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.
14. 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.
15. Moreover, the Applicant has recently on 27 February 2026 filed an affirmation requesting to withdraw her application as she no longer has any problem returning to her home country.
16. 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 problem for her to return to her home country, I accordingly dismiss her leave application.
Dated the 17th day of April 2026
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(Chung Lai Fan, Christine)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 17 April 2026
Shohifah Anis
Applicant’s ref. no.:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 17 April 2026
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 21625
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 91/23 (Formerly RBCZ 5000050/23)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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