SRI RAHAYU v. TORTURE CLAIMS APPEAL BOARD

HCAL 1611/2023

[2026] HKCFI 3755

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1611 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 34-year-old national of Indonesia who last arrived in Hong Kong on 30 July 2019 with permission 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 17 May 2020, she did not depart and instead overstayed, and was arrested by police on 8 December 2020.  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 father’s creditor over her father’s debts.  She was subsequently released on recognizance pending the determination of her claim.  

2.  The Applicant was born and raised in Banyuwangi Regency, East Java, Indonesia.  After leaving school she worked as a domestic servant in Surabaya to make her living, later married her husband and raised a family with a daughter in her home district. 

3.  After separating with her husband, the Applicant in 2013 started to come to Hong Kong to work as a foreign domestic helper to support her daughter, during which she was also required by her father to remit money to him in Indonesia to help him to repay his debts. 

4.  In 2017 upon completing her employment in Hong Kong, the Applicant returned to her father’s home in Indonesia, during which her father’s creditor would from time to time come to threaten her father and other members of his family including the Applicant for repayment of his debts.  

5.  To avoid such threats and to help her father to repay his debts, the Applicant in 2019 again came to Hong Kong to work as a foreign domestic helper, during which she was informed by her sister that her father had borrowed a further loan from another creditor, and for which the Applicant would have to remit more money to her father in Indonesia to help him to repay his debts. 

6.  However, when her last employment was prematurely terminated in May 2020, and when the Applicant was unable to remit any money to her father in Indonesia, his creditors again sent men to threaten him and his family, and so 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 9 September 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).  

7.  By a Notice of Decision dated 11 October 2021 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 father’s creditors upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her father’s creditors to seriously harm or kill her other than some hearsays or her own speculations, that in any event these were private monetary disputes between her father and his creditors 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 270 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 Surabaya or Bali where it would be difficult if not impossible for her father’s creditors to locate her.

9.  On 22 October 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended 2 oral hearings on 9 February 2023 and 26 April 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 5 September 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision. 

10.  In its decision[1] the Board accepted the Applicant’s claim of fear of harm from her father’s creditors over her father’s debts but found no reliable evidence of any real intention of her father’s creditors to seriously harm or kill her other than to press her to repay her father’s debts, and that in any event these were private monetary disputes between her father and his creditors 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 father’s creditors that her claim for non-refoulement protection failed on all applicable grounds. 

11.  On 11 September 2023 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. 

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 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.  It is also of note that the Applicant has recently on 30 April 2026 filed an affirmation requesting to “cancel” her application but without explaining why or what may have happened to her claimed risk in her home country. 

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, 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