SRIATI v. TORTURE CLAIMS APPEAL BOARD

HCAL 292/2023

[2026] HKCFI 393

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 292 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 14 September 2007 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 25 August 2008 or within 14 days of its early termination, but when her employment was prematurely terminated on 14 November 2007 she did not depart and instead overstayed, and was arrested by police on 5 May 2008.  After she was referred to the Immigration Department for investigation, she raised a torture claim on the basis that if she returned to Indonesia she would be harmed or killed by her husband due to their domestic disputes, and after it was rejected, she then sought non-refoulement protection on the same basis.  She was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Desa Sumberraden, Blitar, Jawa Timur, Indonesia. After leaving school she married her husband and raised a family with a daughter in her home district.

3.  During the marriage her husband was often abusive towards her by slapping and punching her that after an incident in 2003 when her husband used a knife to threaten her, the Applicant left him to move back to her parents’ place with her daughter, and in order to support herself and her daughter, she in July 2004 came to Hong Kong to work as a foreign domestic helper.

4.  However, shortly thereafter her husband came to take back their daughter, and demanded the Applicant on the phone to return to their home, and when she refused, he then threatened to kill her when she returned to Indonesia, and so after her last employment was terminated in November 2007 the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police she raised her torture claim, and after it was rejected she then sought non-refoulement protection, for which she completed a Supplementary Claim Form (“SCF”) on 13 August 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.  By a Notice of Decision dated 15 November 2021 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 husband upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her husband to seriously harm or kill her other than angry words and empty threats, nor is it accepted that after all these years since she last left the country in 2007 that he would still have any adverse interest in her, 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 275 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 where it would be difficult if not impossible for her husband to locate her.

7.  On 26 November 2021 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 November 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 21 February 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 that caused her to overstay in Hong Kong to seek protection, that there was no reliable evidence of any real intention of her husband to seriously harm or kill her other than angry words and empty threats, and 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 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 husband that her claim for non-refoulement protection failed on all applicable grounds.    

9.  On 27 February 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation she put forward the following grounds for her intended challenge:

(1)   That the Adjudicator did not consider her claim properly and just dismissed it without taking time to even think about her life;

(2)   That the Adjudicator unreasonably refused to accept her documents in her mother language and failed to give her time to arrange for their translation;

(3)   That the interpreter was not helpful and was impatient with her during her appeal hearing before the Board.         

10.  These are however all just 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 how did the Adjudicator fail to take to consider her claim properly or what documents that she was not allowed to submit without translation, or who was the interpreter unhelpful or impatient with her during the hearing before the Board.  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 fact is that it has been correctly established by both the Director and the Board in their respective decisions that the risk of harm in her 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.                

13.  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.

14.  Moreover, the Applicant recently on 12 December 2025 in writing requested to withdraw her application as her problems in her home country have been resolved that she now wants to return to Indonesia.

15.  In the premises, 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 problem 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