ERIH NURYANTI v. TORTURE CLAIMS APPEAL BOARD

HCAL 311/2023

[2025] HKCFI 6177

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 311 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 36-year-old national of Indonesia who last arrived in Hong Kong on 4 December 2020 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 4 December 2022 or within 14 days of its early termination, but when her employment was prematurely terminated on 18 May 2021, she did not depart and instead overstayed, and was arrested by police on 28 September 2021. 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’s creditor over his outstanding debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Desa Tempel, Kab Indramayu, Jawa Barat, Indonesia. After leaving school she married her husband and moved to his home in Desa Waru, Kec Lohbener, Kab Indramayu to raise a family with their children.

3.  In 2011, her husband suffered serious financial losses from his failed investment, and to help him to repay his debts the Applicant acted as the guarantor to a loan borrowed by her husband from a local money-lender with monthly interests payments which she assisted her husband to make by working as a foreign domestic helper first in Taiwan and then in Hong Kong starting from 2019 by remitting part of her monthly salary to her husband in Indonesia.

4.  However, after her last employment was prematurely terminated in May 2021, she was unable to remit any money to her husband to repay his debts, and when his creditor started to make threats against her husband who then fled from their home with their children to hide in his parents’ place, 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 8 December 2021 and attended screening interview before the Immigration Department with legal representation.

5.  By a Notice of Decision dated 10 January 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”).

6.  In his decision, the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of her being harmed or killed by her husband’s creditor and followers upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her husband’s creditor to seriously harm or kill her other than to press her to repay her husband’s debts, that in any event it was a private monetary dispute between her husband and his 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 adult with working experience to move to other areas of the country away from her home district in large cities such as Bali where it would be difficult if not impossible for her husband’s creditor to locate her.

7.  On 18 January 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 7 September 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 23 February 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1], the Board accepted the Applicant’s claim of fear of harm from her husband’s creditor but found no reliable evidence of any real intention of his creditor to seriously harm or kill her other than to press her to repay her husband’s debts, and that in any event it was a private monetary dispute between her husband and his creditor only without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her husband’s creditor that her claim for non-refoulement protection failed on all applicable grounds.

9.  On 28 February 2023, the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1)  That the Board did not consider her claim properly or at all;

(2)  That the Board just dismissed her claim without thinking about her life;

(3)  That the Adjudicator unreasonably refused to allow her to submit her documents in her native language without translation or to give her time to arrange for their translations.

10.  These however just 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 that the Adjudicator failed to properly consider her claim or to allow her to submit her documents or to give her sufficient time to arrange for their translations when even up to now that the Applicant had failed to identity any such documents or to produce them for the court’s consideration. 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.

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 fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim 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.

13.  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.  Moreover, the Applicant recently on 13 November 2025 filed an affirmation requesting to withdraw her application as she now wants to return to her home country but without any explanation as to what happened to her claimed risk from her husband’s creditor upon her return to Indonesia.

15.  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, I refuse to grant leave and 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