PARIYEM v. TORTURE CLAIMS APPEAL BOARD

HCAL 1865/2023

[2026] HKCFI 2891

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1865 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 32-year-old national of Indonesia who arrived in Hong Kong on 11 June 2019 with permission to work as a foreign domestic helper until the expiration of her employment contract on 12 June 2021 or within 14 days of its early termination, but when her employment was prematurely terminated on 18 September 2019, she did not depart and instead overstayed, and more than one year later on 17 December 2020 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Indonesia she would be harmed or killed by her former husband for divorcing him against his wish and/or 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 Village Jebeng Plampitan, Wonosobo, Central Java, Indonesia. After leaving school she married her husband who was a farmer in the same village and raised a family with a son in her home district.

3.  In 2019 she helped her husband to start his own fruits store business by borrowing a loan from a local money-lender, and for which she came to Hong Kong to work as a foreign domestic helper and to remit her monthly income to her husband in Indonesia to repay her creditor by instalments.

4.  Accordingly she arrived in Hong Kong in June 2019 to start her employment, but later when she discovered that her husband had been spending her remittances on gambling and womanizing instead of repaying her debts, the Applicant was disappointed and decided to seek a divorce from her husband, and when he refused she went ahead to do so with the help of father, whereupon her husband became furious and threatened to kill her, so did her creditor due to her husband’s failure to repay her debts.

5.  As a result, after her employment was prematurely terminated, the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 18 October 2021 and attended screening interview before the Immigration Department with legal representation.

6.  By a Notice of Decision dated 2 December 2021 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 former husband or her creditor 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 husband or creditor to seriously harm or kill her other than just angry words and empty threats from the former over their divorce or just to press her to repay her debts from the latter, that in any event these were private marital or monetary disputes between them 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 1.8 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 or Bali where it would be difficult if not impossible for her former husband or her creditor to locate her.

8.  On 13 December 2021 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 March 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 3 October 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1] the Board found no reliable evidence of any real intention of her former husband to seriously harm or kill her other than just angry words and empty threats over their marital disputes and that the Applicant can just return to her parents’ home without any real risk of being harmed by her former husband, while there were material inconsistencies and discrepancies in her evidence that it doubted her claim about any loan borrowed from any money-lender for her husband’s fruits store business, and that her credibility was further undermined by her failure to raise her claim upon first overstaying in Hong Kong until more than one year later that it rejected her such claim as not credible, and concluded that her claim for non-refoulement protection on either bases failed on all applicable grounds.

10.  On 17 October 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 Adjudicator did not consider her claim at all and just directly dismissed her appeal without taking any time to think about her life;

(2)  That the Adjudicator unreasonably refused to allow her to submit her supporting documents without translations and also failed to give her time to arrange for tehri translations;

(3)  That the interpreter was impatient and unhelpful to her during her appeal hearing before the Board.

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 that the Adjudicator had acted procedurally unfair or irrational, or what documents that Adjudicator refused to allow the Applicant to submit without translations, or in what way was the interpreter impatient or unhelpful to the Applicant during her hearing before the Board. 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 his 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 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.

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, 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.

15.  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.

16.  Moreover, the Applicant has recently in writing requested to withdraw her application as her issues in her home country have been resolved that she now wants to return to Indonesia as soon as possible.

17.  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 issue 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