NURUL AINI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1917/2023

[2026] HKCFI 3476

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1917 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 44-year-old national of Indonesia who arrived in Hong Kong on 13 September 2020 with permission to work as a foreign domestic helper until the expiration of her employment contract on 13 September 2022 or within 14 days of the early termination of her employment contract, but when her employment was prematurely terminated on 6 May 2022, she did not depart and instead overstayed, and was arrested by police on 19 September 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 abusive husband over their marital disputes and/or by her creditors for failing to repay her debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Dersalam, Bae, Kudus, Central Java, Indonesia. After leaving school she worked as a housemaid and house cleaner to make her living, subsequently married her husband and raised a family with 2 children in her home district.

3.  Throughout their marriage the Applicant had had various domestic disputes with her husband during which he would become violent towards her by slapping and punching her thereby causing her great fear and distress.

4.  Due to various medical issues of her parents and sisters the Applicant had also frequently incurred debts by borrowing loans from various money-lenders for their medical expenses.  

5.  In order to get away from abuses from her husband and pressure from her creditors to repay her debts, the Applicant in 2020 applied to work in Hong Kong as a foreign domestic helper, and so on 13 September 2020 she arrived in Hong Kong to start her employment, during which she met and formed a relationship with another man in Hong Kong, and when it was subsequently discovered by her husband, he became furious and threatened to kill her when she returned to Indonesia, whereupon the Applicant ceased all further contact with him.

6.  However, after her employment was prematurely terminated in May 2022, and when she was without any income to repay her debts whereupon her creditors also made death threats against her, the Applicant was therefore afraid to return to Indonesia and 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 25 October 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.  By a Notice of Decision dated 15 December 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”).

8.  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 husband or her creditors upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of any of them to seriously harm or kill her other than angry words and empty threats from her husband or to press her to repay her debts by her creditors, that in any event these were private domestic or monetary disputes between 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”) 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 1.8 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 her husband or creditors for to locate her.

9.  On 23 December 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 30 August 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 13 October 2023 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 claims of fear of harm from her husband or her creditors that caused her to overstay in Hong Kong to seek protection, that even if her claimed threats from her husband or her creditors were true that there was no reliable evidence of any real intention of her husband or creditors to seriously harm or kill her in what were essentially private domestic or monetary disputes between 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 husband or her creditors that her claim for non-refoulement protection failed on all applicable grounds. 

11.  On 25 October 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 at all and just directly dismiss 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.

12.  These are however all just some bare and vague assertions of the Applicant without any necessary or relevant particulars or specifics or elaborations as to how they apply to his 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 Adjudicator had refused to allow her to submit without translations, or in what way was her interpreter impatient or unhelpful to her during her 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.

13.  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.

14.  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 risks of harm in her claim even if real are localized ones 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.                

15.  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.

16.  Moreover, the Applicant has recently on 15 April 2026 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.

17.  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