SUTERI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1983/2023

[2026] HKCFI 3341

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1983 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 42-year-old national of Indonesia who last arrived in Hong Kong on 20 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 5 April 2022, she did not depart and instead overstayed, and was arrested by police on 28 April 2022. 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 creditor for failing to repay her debts and/or her father’s creditors over his unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Ds Gebang Udik, Kec Gebang, Cirebon, Indonesia. After leaving school she worked as a domestic helper in Kuwait, Singapore and Taiwan before coming to Hong Kong in 2013 to work as a foreign domestic helper.

3.  During her employment in Taiwan in 2009, she was told by her father to remit money to him in Indonesia to assist him in repaying his various loans borrowed from local money-lenders for medical expenses for his cancer treatments, which she did until her father’s death in 2010, and thereafter whenever she returned to her home in Indonesia for holidays, she would encounter threats from her father’s creditors with demands to repay her father’s debts that she had to go into hiding before leaving the country to continue with her employment overseas.

4.  In 2013 she borrowed a loan via her uncle for the expenses of her application to come to Hong Kong to work as a foreign domestic helper, and for which she was to repay by instalments by remitting money from Hong Kong to her uncle in Indonesia.

5.  However, after her last employment was prematurely terminated in April 2022, she was without any income to repay her debts, and when she also found out that her uncle had used some of her remittances for his own use without repaying her creditor, and for which her creditor had also made threats against her, the Applicant was therefore afraid to return to Indonesia and instead 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 26 May 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 15 July 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”).

7.  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 creditor or her father’s creditors 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 those creditors to seriously harm or kill her other than to press her to repay those debts, that in any event these were private monetary disputes between her and the 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”) 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 1,9 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 or Bali where it would be difficult if not impossible for her creditors to locate her.

8.  On 27 July 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 8 May 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 20 October 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

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

10.  On 6 November 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 various complaints about the decision which can be summarized as follows:

(1)  That the Board wrongly determined her claim without addressing the issues properly and instead just came up with the assessment on more or less of a template basis;

(2)  That without legal advice or representation and not being able to read English she was unable to properly understand the reasons for the Board’s decision in rejecting her claim or appeal;

(3)  That the Board wrongly exercised its case management power by placing undue weight on the reports of the availability of state protection in her home country.

11.  These are however just some 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 into account of relevant COI or being selective or improperly rely on irrelevant COI. 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.

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 even 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 on 14 April 2026 in writing requested to withdraw her application as it is now safe for her to return to 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, and in view of her latest confirmation that it is safe 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