PITA DWI ANDRIANI v. TORTURE CLAIMS APPEAL BOARD

HCAL 2254/2023

[2026] HKCFI 4768

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2254 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 35-year-old national of Indonesia who last arrived in Hong Kong on 21 June 2020 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 19 June 2021, she did not depart and instead overstayed, and more than one year later on 5 September 2022 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Indonesia she would be harmed or killed by her elder brother over their religious dispute.

2.  The Applicant was born and raised as a Muslim in Village Kunti, District Sampung, Ponorogo Regency, East Java, Indonesia. After leaving school she worked as a clerk to make her living, married her husband and raised a family with a son in her home district.

3.  After her marriage later ended in a divorce, the Applicant returned to work to support her son first in Singapore as a domestic servant, and then in 2017 she started coming to Hong Kong to work as a foreign domestic helper.

4.  While working in Hong Kong she befriended with some fellow workers who were Christians and gradually became interested in their religion that she also attended church together with her Christian friends, and in June 2019 she decided to convert her religion from Islam to Christianity by being baptized by a fellow Indonesian who claimed to be a pastor in some private ceremony outside the church.

5.  However, later when she revealed her such religious conversion to her family in Indonesia on the phone, her mother became furious and threatened to disown her from the family, while her elder brother demanded that she should re-convert her religion back to Islam or else he would kill her when she returned to Indonesia.

6.  As a result the Applicant became fearful for her life, and after her last employment was prematurely terminated in June 2021, she was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent surrender to the Immigration Department more than one year later in September 2022, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 30 November 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 21 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 found no substantial grounds for believing that there will be any real and foreseeable risk of her being harmed or killed by her elder brother over her religious conversion upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her brother to seriously harm or kill her other than just angry words and empty threats, that in any event it was a private religious dispute between her and her brother and within their family only without any official involvement that state or police protection would be available to the Applicant if resorted to as there is law in Indonesia to protect freedom of religions, 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 or Medan where there is a large population of Christians and where it would be difficult if not impossible for her brother to locate her.

9.  On 3 January 2023 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 3 November 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 1 December 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 of very limited knowledge about the religion of Christianity for which she claimed to have been converted and her bare assertion of such conversion without any necessary details or documentary evidence that it doubted the credibility of her claim of fear of harm from her brother over any religious conversion 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 her first overstaying in Hong Kong until more than one year later that she was considered not a witness of truth, that even if her claimed risk of harm from her brother over her alleged religious conversion were true or real that there was no reliable evidence of any real intention of her brother to seriously harm or kill her other than some angry words and empty threats, and that in any event it was a private religious dispute within her family 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 brother that her claim for non-refoulement protection failed on all applicable grounds.

11.  On 15 December 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 just dismissed it directly without taking any 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 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 what documents that she was not allowed to submit without translations when the record shows that she never raised such request or issue before the Board during her appeal hearing at all, or in what way was the interpreter impatient or unhelpful to her during the hearing in which again she never raised any such issue to the Board 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.

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 Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, 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.

15.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions 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, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16.  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.

17.  Moreover, the Applicant has recently on 8 July 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.

18.  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