SARBI JARTINI v. TORTURE CLAIMS APPEAL BOARD

HCAL 2234/2023

[2026] HKCFI 1929

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2234 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 48-year-old national of Indonesia who last arrived in Hong Kong on 4 August 2017 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 4 August 2019 or within 14 days of its early termination, but when her employment was prematurely terminated on 20 May 2018, she did not depart and instead overstayed, and was arrested by police more than 4 years later on 7 June 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 elder brothers for bringing shame and dishonor to the family for being a lesbian and/or by her fellow villagers due to her sexual orientation. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in a village in Blitar, Jawa Timur, Indonesia. After leaving school she worked as a factory worker in Jakarta before coming to Hong Kong in 1996 to work as a foreign domestic helper to make her living.

3.  In 2008 while working in Hong Kong she met and formed a lesbian relationship with a fellow Indonesian domestic helper, and of which she kept as a secret from her family.

4.  However, in 2018 her elder brothers in Indonesia asked her to return to Indonesia to marry a man in her home village as arranged by the family, and when she refused and revealed that she had been in a lesbian relationship with another woman in Hong Kong, her brothers became furious and threatened to kill her when she returned to Indonesia for bring shame and dishonor to the family.  

5.  As a result the Applicant became fearful for her safety, and after her last employment was terminated in May 2018, she was afraid to return to Indonesia for fear of being harmed or killed by her brothers and/or her fellow villagers whom she also feared may disapprove her sexual orientation, and so she overstayed in Hong Kong, and upon her arrest by the police some 4 years later she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 12 July 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 15 September 2022 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 elder brothers or other villagers in her home village upon her return to Indonesia due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her elder brother or any of the villagers to seriously harm or kill her other than angry words and empty threats from her brother or her own speculations about the villagers, that in any event it was a private dispute between her and her brother 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 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 village in large cities such as Jakarta where it would be difficult if not impossible for anyone to locate her.

8.  On 23 September 2022 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 24 August 2023 before the Board but declined to give any further evidence or to answer any questions raised of her claim by the Adjudicator for the Board despite being advised to do so by the Adjudicator of various issues raised of her claim, whereupon the Board proceeded to deal with her claim and appeal just based on the materials and information provided earlier by her to the Director and available in the hearing bundle before the Board. On 2 November 2023 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 materials and information provided by the Applicant in the hearing bundle which she failed or declined to explain or clarify at the hearing that the Board considered that her claim of being a lesbian or having been involved in a lesbian relationship with another Indonesian domestic helper in Hong Kong as unconvincing and unreliable, that her credibility was further undermined by her failure to raise her claim upon her first overstay in Hong Kong until more than 4 years later and only upon her arrest by the police, and that in any event even if she was indeed a lesbian that there was no reliable evidence of any real intention of her elder brothers or any of her fellow villagers to seriously harm or kill her other than angry words and empty threats from her brothers or her own speculations as regard the villagers, and that relevant COI regarding the situation for LGBTI people in Indonesia show that the Applicant would not face any real risk of persecution in most parts of Indonesia except for some conservative areas where she can stay away without any fear of any real risk of harm from anyone that her claim for non-refoulement protection failed on all applicable grounds.    

10.  On 13 December 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 to which she just attached a copy of the decision 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.

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 Board rejected her claim for the thorough and detailed analysis and reasoning set out in its decision in the absence of any oral evidence or answers from her to clarify or explain the various issues raised thereof by the Board despite being given the opportunity to do so, 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.

13.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, a decision also agreed and confirmed by the Board, 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 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.

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 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