TINTIN SOLIHATINI v. TORTURE CLAIMS APPEAL BOARD

HCAL 2050/2023

[2026] HKCFI 3615

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2050 OF 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 31-year-old national of Indonesia who arrived in Hong Kong on 14 January 2020 with permission to work as a foreign domestic helper until the expiration of her employment contract on 14 January 2022 or within 14 days of its early termination, but when her employment was prematurely terminated on 30 December 2021, she did not depart and instead overstayed, and was arrested by police some 16 months later on 11 May 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 elder brother for failing to help him to repay his debts.  

2.  The Applicant was born and raised in KP Awilarangan, Desa Mekarmukti, Kec Cihampelas, Bandung Barat, Indonesia.  After leaving school she worked as a baby sitter in Jakarta, and after marrying her husband she moved back to her home village where they raised their family with 2 children.

3.  After the passing away of her husband, and in order to support her children the Applicant in 2017 went to Singapore to work as a domestic helper before coming to Hong Kong in 2020 to work as a foreign domestic helper. 

4.  In January 2022 her elder brother called her from Indonesia asking her to help him to pay off his debts by marrying his creditor, and when the Applicant refused, her brother became furious and threatened to kill her when she returned to Indonesia.

5.  However, later when her employment was prematurely terminated, the Applicant was afraid to return to Indonesia due to her brother’s threats, and so she overstayed in Hong Kong, and upon her subsequent arrest by the police some 16 months later in May 2023 she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 12 June 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 4 July 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 brother upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill‑treatment from her brother, that there is no evidence of any real intention of her brother to seriously harm or kill her other than just angry words and empty threats out of his frustration over her refusal to marry his creditor, that in any event it was a private and personal dispute between just her and her brother 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 279 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 such as Jakarta where it would be difficult if not impossible for her brother to locate her.

8.  On 13 July 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 16 August 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 29 August 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted and rejected the credibility of her claim of fear of harm from her brother for failing to assist him to repay his debts that caused her to overstay in Hong Kong to seek protection, that her credibility was further undermined by her failure to raise her claim upon first overstaying in Hong Kong until some 16 months later and only after her arrest by the police that it found the Applicant was not a credible witness and rejected her claim of having been threatened by her brother to harm or kill her due to her refusal to marry his creditor that she overstayed her visa in fear of her brother, and concluded that she had fabricated such claims to create a basis upon which to apply for non-refoulement protection in Hong Kong that her claim for non-refoulement protection failed on all applicable grounds.    

10.  On 16 November 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, nor was she able to do so at the hearing of 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 risk of harm in the Applicant’s 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, 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.  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, I therefore refuse to grant leave and accordingly dismiss her 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