HETI KUSWANTI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1771/2024

[2026] HKCFI 3671

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1771 OF 2024

  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 41-year-old national of Indonesia who last arrived in Hong Kong on 27 May 2022 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 27 May 2024 or within 14 days of its early termination, but when her employment was prematurely terminated on 12 March 2023, she did not depart and instead overstayed, and was subsequently arrested by police more than 7 months later on 8 November 2023.  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 former husband due to their dispute over the custody of their children.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Alang Amber, Binangun District, Cilacap Province, Indonesia.  After leaving school she went to Singapore to work as a domestic servant to make her living.

3.  In 2008 she returned to Indonesia to marry her husband and raised a family with 2 children in her home village.

4.  Due to her husband’s limited income as a construction worker, the Applicant in 2016 started to come to Hong Kong to work as a foreign domestic helper, leaving her children in the care of her parents in her home village.

5.  In 2017 while working in Hong Kong, the Applicant discovered that her husband was having an affair with another woman, and so she called her husband and demanded to have a divorce, to which her husband agreed and that the children should remain in the care of her parents after the divorce, which the Applicant subsequently obtained in 2018 with the assistance of a lawyer. 

6.  However, sometime in late 2022 the Applicant received a phone call from her mother claiming that her former husband had come to take their children with him, and when the Applicant confronted him on the phone to insist that the children should remain in the care of her mother as she had been awarded their children’s custody under their divorce agreement, whereupon her former husband became furious and threatened to kill her, and so when her last employment was prematurely terminated in March 2023, 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 21 February 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.  By a Notice of Decision dated 30 April 2024 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”).

8.  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 former husband upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her former husband to seriously harm or kill her other than just some angry words and empty threats, that in any event it was a private marital dispute between just the 2 of 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”) shows that reasonable internal relocation alternatives are available in Indonesia with a large population of 280 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 her former husband to locate her.

9.  On 6 May 2024 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 30 July 2024 before the Board during which she gave evidence and answered questions raised on her claim by the Adjudicator for the Board.  On 15 August 2024 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  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 former husband that caused her to overstay in Hong Kong to seek protection, that her credibility was further undermined by her failure to raise her claim upon first overstaying in Hong Kong until more than 7 months later and only after her arrest by the police, that even if her claimed threats from her former husband were true that there was no reliable evidence of any real intention of her former husband to seriously harm or kill her other than just angry words and empty threats, and that in any event it was a private marital dispute between just the 2 of 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 her former husband that her claim for non-refoulement protection failed on all applicable grounds.    

11.  On 8 October 2024 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 of fear of harm from her former husband 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.

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 even 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 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