SURINI v. TORTURE CLAIMS APPEAL BOARD

HCAL 278/2024

[2026] HKCFI 1558

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 278 OF 2024

  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 39-year-old national of Indonesia who last arrived in Hong Kong on 24 July 2016 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 24 July 2018 or within 14 days of its early termination, but when her employment was prematurely terminated on 9 August 2016 she did not depart and instead overstayed, and was arrested by police some 7 years later on 28 August 2023.  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 husband over their monetary/marital disputes and/or her parents over her lesbian relationship in Hong Kong.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised as a Muslim in Village Besole, Sub‑district Besuki, District Tulung Agung, Eastern Java, Indonesia.  After leaving school she married her husband and raised a family with a son in her home district.

3.  In 2004 she went to Taiwan to work as a domestic helper to help support the family, and in 2014 she started coming to Hong Kong to work as a foreign domestic helper.

4.  However, after her last employment was terminated in August 2016, and when she was unable to remit any money to her husband in Indonesia, her husband became furious and threatened to kill her, and so she was afraid to return to Indonesia and therefore overstayed in Hong Kong, during which she formed a relationship with another man.   

5.  In 2022 after breaking up her relationship with her boyfriend in Hong Kong, the Applicant became interested in women and soon started a lesbian relationship with another woman, but when it was later discovered by her husband and her parents in Indonesia, they accused her of bringing shame and dishonor to her family as a Muslim and threatened to kill her when she returned to Indonesia, and so 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 18 October 2023 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 November 2023 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 and/or her parents 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 them to seriously harm or kill her other than just angry words and empty threats, that in any event these were private disputes between them within their family 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 279 million people spread across a vast territory 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 anyone to locate her.

8.  On 20 November 2023 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 11 January 2024 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 25 January 2024 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1] the Board found remarkable vagueness in the Applicant’s evidence of suddenly becoming interested in women or becoming a lesbian after all her years of being in relationships with men in both her home country and in Hong Kong but unable to describe her own awareness and development of her emotional and sexual feelings and that her use of stereotypical statements about human sexuality and her artificial testimony on such central issues which show a serious indicator of negative credibility, while her account of threats from her husband and her parents was also so vague as to contain no realistic content with just bare assertions that she was entirely unable to answer even basic questions seeking to elicit some reasonable details which were just suggestive of lived rather than learnt experience, and that her credibility was further undermined by her failure to raise her claim when those alleged threats were first made against her by her husband or parents until years later and only upon her arrest by the police that the Board found not a reasonable chance of minimum likelihood that she is a lesbian or has given any credible evidence whatsoever for her case of any threats from her husband or parents over any issues as alleged by her that it concluded that her claim for non-refoulement protection failed on all applicable grounds.    

10.  On 6 February 2024 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 other than just a bare assertion that the Board failed to properly consider her claim but without providing any details or particulars or elaboration as to how it did so, nor did she request any oral hearing for her application.  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.

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 Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law 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 to challenge the finding of the Board.

13.  Furthermore, the fact is that it has also been established by the Director in his decision that the risks of harm in the Applicant’s claim even if real are localized ones and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, a decision also agreed and confirmed by the Board, 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 9 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.

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 problems 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