LIA DINDA PRIAMI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1350/2023

[2025] HKCFI 6111

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1350 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 27-year-old national of Indonesia who arrived in Hong Kong on 5 November 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 23 December 2021, she did not depart and instead overstayed, and was arrested by police some 6 months later 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 creditor for failing to repay her debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Dusun Sumber, Desa Submerasi, Purwoharjo, Banyuwangi, Jawa Timur, Indonesia. After leaving school she worked as a domestic helper in her home district to make her living.

3.  In 2017, she started a fruit wholesale business together with her uncle with the help of a loan borrowed from a local money-lender to be repaid within one years and with monthly interests payments which she initially managed to make from her business income.

4.  However, her business did not fare well, and soon in early 2018 she defaulted with her interests payments that her creditor started to send men to threaten her, and after being beaten by those men on one occasion and when her uncle had absconded with whatever was left of the business capital and disappeared, the Applicant became fearful for her life and fled to another village in Bangyuwangi to hide from her creditor and to make arrangements to leave the country by applying to come to Hong Kong to work as a foreign domestic helper.

5.  Accordingly on 4 November 2019 she departed Indonesia for Hong Kong to start her employment, but when her last employment was prematurely terminated on 23 December 2021, she was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her arrest by the police some 6 months later in June 2022 she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 6 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 28 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 and followers 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 her creditor to seriously harm or kill her other than to press her to repay her debts, that in any event it was a private monetary dispute between her and her creditor 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 young 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 creditor to locate her.

8.  On 3 August 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 19 June 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 26 June 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 discrepancies and contradictions in the Applicant’s evidence that it doubted and rejected the credibility of her claim of fear of harm from any creditor over any debts that caused her to overstay in Hong Kong to seek protection, that there was no reliable evidence of any business started by her or with her uncle as alleged or that she had borrowed any loan from any money-lender for any business or that she had been threatened over any debts as alleged or at all, and that her credibility is further undermined by her failure to raise her claim upon first arriving in Hong Kong or at the expiration of her last employment until some 6 months later and only after her arrest by the police that the Board concluded that she had fabricated her claim entirely for the purpose of her non-refoulement claim so as to delay her removal from Hong Kong that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 4 August 2023, the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her affirmation of the same date she put forward the following grounds for her intended challenge:

(1)  That the Adjudicator did not consider her claim properly or at all and just dismissed it without taking any time to consider her life;

(2)  That the Adjudicator unreasonably refused to allow her to submit her documents in her native language without translation and without giving her time to arrange for their translation;

(3)  That the interpreter was impatient and not helpful to her at all.

11.  These are however all 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 how did the Adjudicator fail to properly consider her case and situations, or what documents that she had wanted to submit or how did the Adjudicator refuse to allow her time to arrange for their translation as the hearing record clearly shows no such request by the Applicant, or in what way was the interpreter impatient or unhelpful to the Applicant during the hearing. 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 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 his 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.

14.  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, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.  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.

16.  Moreover, the Applicant recently on 23 October 2025 filed an affirmation requesting to withdraw her application as she has no more problem returning to Indonesia.

17.  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