DALIM AMRIYAH BT DULGANI v. TORTURE CLAIMS APPEAL BOARD

HCAL 692/2024

[2026] HKCFI 4042

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 692 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 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 39-year-old national of Indonesia who arrived in Hong Kong on 9 May 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 17 July 2021, she did not depart and instead overstayed, and was arrested by police some 2 years later on 19 September 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 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 Desa Bayalangu Lor, Kec Amatan Gegesik, Indonesia. After leaving school she worked as a domestic servant in Malaysia to make her living, and subsequently returned to Indonesia to marry her husband and raised a family with 2 children in her home district.

3.  After her marriage ended in a divorce, and in order to support her children, the Applicant in 2019 applied to work as a foreign domestic helper in Hong Kong, and to meet her then living expenses in Indonesia and to pay for the expenses of her application, the Applicant borrowed a loan from a local money-lender to be repaid by monthly instalments from her salary to be earned in Hong Kong.

4.  Accordingly the Applicant arrived in Hong Kong in May 2019 to start her employment and thereafter to remit money to her creditor in Indonesia for the repayment by instalments of her loan, but after her last employment was prematurely terminated in July 2021 that she was unable to repay her loan, her creditor started to make threatening phone calls to her, and so the Applicant was 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 25 October 2023 and attended screening interview before the Immigration Department with legal representation.             

5.  By a Notice of Decision dated 22 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”).

6.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her creditor upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from her creditor, 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”) shows 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 1.9 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 Surabaya or Bali where it would be difficult if not impossible for her creditor to locate her.

7.  On 29 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 14 February 2024 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 1 March 2024 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1] the Board found no reliable evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, and that in any event it was a private monetary dispute between just the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia to negate any risk of harm from her creditor that her claim for non-refoulement protection failed on all applicable grounds. 

9.  On 2 May 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 in her supporting affirmation of the same date in which she just repeated her claim of fear of harm from her creditor over her debts as before but without putting forth any proper ground for her intended challenge. 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.

10.  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.

11.  In the Applicant’s case, the Board rejected her claim 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.

12.  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 non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

13.  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.

14.  It is also of note that the Applicant has recently on 8 June 2026 filed an affirmation requesting to withdraw her application but without providing any reason therefor or any explanation as to what may have happened to her claimed risk in her home country.

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