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HCAL 121/2024
[2026] HKCFI 1855
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 121 OF 2024
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BETWEEN
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Lusia Silo |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
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 last arrived in Hong Kong on 29 November 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 29 June 2022, she did not depart and instead overstayed, and was arrested by police on the same day. 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 brother-in-law or her elder sister due to their personal disputes. She was subsequently released on recognizance pending the determination of her claim.
2. The Applicant was born and raised in Datah diaan Village, Putus Sibau Sub-district, Kapus Hulu District, Pontiannak Kalimantan Barat Province, Indonesia. After leaving school she worked as a saleslady in her home district, and then in 2001 she went to Singapore to work as a domestic helper before coming to Hong Kong in 2005 to work as a foreign domestic helper.
3. In 2016 her younger sister Rosita divorced her husband Abu, for which Abu blamed the Applicant for having said things to Rosita that caused her to divorce him that he threatened to kill her when she returned to Indonesia, and as a result the Applicant became fearful for her safety.
4. In 2014 the Applicant realized that she was a lesbian and started having same sex relationship with other women in Hong Kong, and later in 2018 when her elder sister Olivia learnt about it, she accused the Applicant of bringing shame to the family and also threatened to kill her, and so after her last employment was prematurely terminated in June 2022, she was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 26 September 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).
5. By a Notice of Decision dated 26 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 assessed the level of risk of harm from her former brother‑in‑law or her elder sister 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 either of them to seriously harm or kill her other than just angry words and empty threats, that in any event these were private disputes between the 3 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 Jakarta where it would be difficult if not impossible for anyone to locate her.
7. On 4 November 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 18 October 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 8 December 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.
8. In its decision[1] the Board found no reliable evidence of any real intention of her former brother-in-law or her elder sister to seriously harm or kill her other than angry words and empty threats, and that in any event these were private personal disputes between the 3 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 brother-in-law or elder sister that her claim for non-refoulement protection failed on all applicable grounds.
9. On 11 January 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 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.
10. 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.
11. 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 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.
12. 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.
13. It is also of note that the Applicant has recently in writing requested to withdraw her application as she wants to return to Indonesia but without any explanation as to her claimed risks in her home country.
14. 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, I refuse to grant leave and accordingly dismiss her application.
Dated the 30th day of March 2026
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(Klein Tse)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or her solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 30 March 2026
Lusia Silo
Applicant’s ref. no.:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 30 March 2026
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 21139
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 974/22 (formerly
RBCZ 5000844/22) (T4S18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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