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HCAL 1643/2023
[2026] HKCFI 3340
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1643 OF 2023
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BETWEEN
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Ika Agustina |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative Respondent |
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and |
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Director of Immigration |
Putative 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 42-year-old national of Indonesia who last arrived in Hong Kong on 13 March 2021 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 28 September 2021 or within 14 days of its early termination, but when her employment was prematurely terminated on 30 June 2021, she did not depart and instead overstayed, and was arrested by police on 5 November 2021. 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 husband for refusing to reconcile with him and/or his creditors over her husband’s debts. She was subsequently released on recognizance pending the determination of her claim.
2. The Applicant was born and raised in Jalan Raya Kalikudi-Adipala, Dusun Kalikudi, Adipala, Cilacap, Central Java, Indonesia. After leaving school she married her husband who worked as a hawker, and raised a family with 2 children in her home district.
3. Due to his limited income and gambling habit, her husband was always in debts that his creditors would often threaten and harass him and the Applicant, whereupon her husband would then vent his anger and frustration on her by being abusive and violent towards her, and so to help out with their finance and to avoid threats from her husband’s creditors, the Applicant in 2006 went to Singapore to work as a domestic helper until 2008 when she started coming to Hong Kong to work as a foreign domestic helper.
4. While working in Hong Kong the Applicant later discovered that her husband was having affairs with other women, and for which she demanded to divorce him who however became furious and threatened to kill her if she dared to do so, and still the Applicant went ahead to hire a lawyer to apply for divorce, and eventually in July 2018 she became legally divorced from her husband.
5. Shortly thereafter in late 2018 her husband called her from Indonesia requesting for a reconciliation that they should re-marry again, but when the Applicant refused, he became furious and demanded that she repaid all his debts as compensation, to which she also refused, whereupon her husband lost his temper and threatened to kill her when she returned to Indonesia, and so the Applicant ceased all further contact with him.
6. However, after her last employment was prematurely terminated in June 2021, the Applicant was afraid to return to Indonesia due to threats from her former husband and his creditors 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 30 December 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 27 January 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 former husband or his 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 former husband or his creditors to seriously harm or kill her other than just angry words and empty threats from the former or to press her to repay the debts from the latter, that in any event these were private relationship 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 275 million people spread across a vast territory of more than 1 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 Palembang where it would be difficult if not impossible for anyone to locate her.
9. On 8 February 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 10 January 2023 before the Board during which she however declined to give further evidence or answer questions after confirming those information previously provided by her to the Director and in the hearing bundle before the Board. On 6 September 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 materials and information submitted for the Applicant’s claim but which she failed to explain or clarify at the hearing that it doubted the credibility of her claim of fear of harm from her former husband or his creditors that caused her to overstay in Hong Kong to seek protection, that in any event there was no reliable evidence of any real intention of her former husband or his creditors to seriously harm or kill her other than just angry words or empty threats arising from some private 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 former husband or his creditors that her claim for non-refoulement protection failed on all applicable grounds.
11. On 15 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 in which she just repeated her claim as before 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 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.
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 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.
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. Moreover, the Applicant has recently by way of letter and affirmation 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.
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, 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.
Dated the 11th day of June 2026
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(Chung Lai Fan, Christine)
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 his 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 11 June 2026
Ika Agustina
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 11 June 2026
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 19934
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2487/21 (formerly as RBCZ 5000347/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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