SUMERIH BINTI NASUKA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1051/2024

[2026] HKCFI 4127

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1051 OF 2024

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 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 43-year-old national of Indonesia who arrived in Hong Kong on 10 January 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 6 November 2021, she did not depart and instead overstayed, and was arrested by police on 7 June 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 abusive husband dover their domestic disputes. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Subang, West Java, Indonesia. After leaving school she married her husband and raised a family with 5 children in her home district.

3.  In 2011 her husband borrowed a loan from some friend of his to meet the children’s education expenses, and for which he was required to repay by monthly instalments with interests, but which turned out to be a heavy burden to him due to his own limited income, and so in order to help out the Applicant later in the same year went to Qatar and then Taiwan to work as a domestic helper and to remit the bulk of her monthly salary to her husband, and in 2017 she returned to her home in Indonesia believing that her husband’s financial situation would have improved.

4.  However, she soon discovered that the situation in fact had not improved, and instead her husband often vented his anger over their financial problems on her by slapping and beating her at will, and so to avoid his anger and abuses the Applicant in 2019 came to Hong Kong to work as a foreign domestic helper.

5.  After her last employment was prematurely terminated in November 2021, the Applicant was however 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 21 July 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 26 August 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 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 just angry words and empty threats, that in any event these were private domestic disputes between just the 2 of them only and within their family 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 277 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 Surabaya where it would be difficult if not impossible for her husband to locate her.

8.  The Applicant never lodged any appeal to the Torture Claims Appeal Board (“Board”) under Section 37ZR of the Immigration Ordinance to challenge the Director’s decision as part of the 2-tiers screening process of all non-refoulement claims under the Unified Screening Mechanism (“USM”), and instead she filed a Form 86 on 3 July 2024 for leave to apply for judicial review of the Director’s decision, and 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 Director’s decision without putting forth any ground for her intended challenge, or more relevantly any explanation as to why she had not first brought her appeal to the Board, nor did she subsequently attend the scheduled hearing of her application without any explanation.

9.  As such, and in the absence of any appeal being first brought by the Applicant to the Board for her intended challenge of the Director’s decision as required under Section 37ZR of the Immigration Ordinance, of which she had in fact also been so advised by the Director at paragraph 39 at the conclusion of his decision, I do not find in the circumstances any legal basis for the Applicant to bring her challenge of the Director’s decision by way of judicial review at this stage without first having complied with the statutory requirement as noted above, and accordingly dismissed 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