KIRIT AGUSTININGSIH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1537/2023

[2026] HKCFI 680

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1537 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 45-year-old national of Indonesia who last arrived in Hong Kong on 5 October 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 3 June 2022, she did not depart and instead overstayed, and was arrested by police on 6 August 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 husband over their domestic dispute. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Desa Mentaraman, Donomulyo, Malang Province, East Java, Indonesia. After leaving school she married her husband and raised a family with a daughter in her home district.

3.  Soon she found her husband to have a violent temper and was often abusive towards her by slapping and punching her around, and due to his limited income as a farmer that in 2000 she was required to go work in Hong Kong as a foreign domestic helper so as to remit part of her monthly income to her husband in Indonesia for the support of their family. 

4.  However, after her last employment was terminated in June 2022, she was unable to remit any more money to her husband who then became furious and threatened on the phone to kill her when she returned to Indonesia, and so the Applicant was afraid to return to Indonesia and instead 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 8 September 2022 and attended screening interview before the Immigration Department with legal representation.             

5.  By a Notice of Decision dated 10 October 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no evidence of any real intention of her husband to seriously harm or kill her upon her return to Indonesia, that in any event it was a private domestic 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”) 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 district in large cities such as Bali or Surabaya where it would be difficult if not impossible for her husband to locate her.

7.  On 21 October 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 May 2023 before the Board during which she however declined to give any evidence or to answer questions raised of her claim by the Adjudicator for the Board despite being advised to do so due to various inconsistencies and discrepancies found in her claim, and so the Adjudicator proceeded to deal with her appeal on paper without any clarifications or explanations from the Applicant and just on the materials and information submitted earlier by her to the Director and available in the hearing bundle for her appeal before the Board. On 29 June 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  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 husband over any domestic or monetary dispute between them that caused her to overstay in Hong Kong to seek protection, that even on her own admission given to the Director that she had not seen her husband since 2005 that it is not accepted that he had made any real threats to her or that she had any real fear of him whom she last talked on the phone only in January 2021 that any threats arising therefrom would cause her any real fear some 1 ½ years later when she overstayed in Hong Kong, that her credibility was further undermined by her failing to then raise her claim until her subsequent arrest in August 2022 that in the absence of any supporting oral evidence or clarification or explanation from her at the hearing of her appeal despite being advised by the Adjudicator to do so that the Board was not persuaded that there is any real risk or real chance that the Applicant will face any real risk of serious harm or ill-treatment of any sort form her husband upon her return to Indonesia that her claim for non-refoulement protection failed on all applicable grounds.    

9.  On 31 August 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 directly dismissed it without even taking time to consider her life;

(2)   That the Adjudicator unreasonably refused to allow her to submit her supporting documents without any translation and also refused to give her time to arrange for their translation;

(3)   That the interpreter was unhelpful and impatient to her during her appeal hearing before the Board.

10.  All these are however 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 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 in what way of the interpreter unhelpful or impatient to her, or what documents that she was not allowed to submit to the Board by the Adjudicator when at the hearing that she refused to give any evidence despite being invited and advised by the Adjudicator to do so, and that up to today she has still not identified any of those documents at all. 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.

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 essentially on its adverse finding on her credibility for the analysis and reasoning set out in its decision and upon her decline to give any evidence or answers to questions raised of her claim at the hearing despite being advised by the Adjudicator 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 correctly 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.  It is also of note that the Applicant recently on 9 January 2026 in writing requested to withdraw her application as she now wants to return to Indonesia but without any explanation as to what happens to her claimed risk in her home country.

16.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her 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