AINUN NIKMAH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1778/2023

[2026] HKCFI 4697

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1778 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 37-year-old national of Indonesia who last arrived in Hong Kong on 19 October 2019 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 12 December 2022, she did not depart and instead overstayed, and on 26 January 2023 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 elder brother for refusing to marry the man as arranged for her by her family.

2.  The Applicant was born and raised as a Muslim in Desa Sukodadi, Kangkung, Kendal, Central Java, Indonesia. After leaving school she went to Malaysia to work as a housemaid to make her living before coming to Hong Kong in 2014 to work as a foreign domestic helper.

3.  In about 2020 while working in Hong Kong she was informed by her mother in Indonesia that the family had arranged for her to marry someone in her home district whom she had never met or knew anything about, and when she refused, her mother kept pressing her with the marriage arrangement.

4.  Later in 2022 her elder brother called her from Indonesia and demanded that she should do as arranged by her family for her marriage, and when the Applicant again refused, her brother became furious and threatened to kill her when she returned.

5.  As a result, the Applicant became fearful for her safety, and so when her last employment was later prematurely terminated in December 2022, she was afraid to return to Indonesia and therefore overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 15 March 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 14 April 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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her elder brother 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 brother to seriously harm or kill her other than just angry words and empty threats, that in any event it was a private family dispute between her and her 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”) shows 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 or Bali where it would be difficult if not impossible for anyone to locate her.

8.  On 21 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 4 August 2023 before the Board during which she gave additional reason for refusing her family’s arranged marriage due to her sexual orientation that she does not like men, and that she also answered questions raised of her claim by the Adjudicator for the Board. On 22 September 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1] the Board found no reliable evidence of any real intention of her family or her brother to seriously harm or kill her for refusing to accept the arranged marriage or for her alleged sexual orientation that it is not accepted that she will face any real risk of harm from her brother or her family upon her return to Indonesia, and that in any event it was a private and personal dispute between her and her family only without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia if resorted to 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 that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 5 October 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and 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 properly or at all and just directly dismissed it without taking time to think about her life;

(2)  That the Adjudicator unreasonably refused to allow her to submit her supporting documents without translations and also 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 some bare and bald assertions of the Applicant without any relevant or necessary 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 she had wanted to submit without translations when the record never shows any such request by the Applicant during the hearing, or in what way was the interpreter impatient or unhelpful to her during her appeal hearing before the Board. 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.

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 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.

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 parts 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.  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 in July 2026 requested in writing to withdraw her application as her problems in her home country have been resolved that it is now safe for her to return to Indonesia.

16.  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 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