SRI WAHYUNI v. TORTURE CLAIMS APPEAL BOARD

HCAL 456/2024

[2026] HKCFI 4459

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 456 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 49-year-old national of Indonesia who last arrived in Hong Kong on 26 March 2023 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 24 September 2024 or within 14 days of its early termination, but when her employment was prematurely terminated on 15 July 2023, she did not depart and instead overstayed, and was arrested by police on 24 July 2023 for undertaking unauthorized employment, and for which she was subsequently convicted and sentenced to prison for 2 months. After she was discharged from prison and was referred to the Immigration Department for deportation, 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 over their marital disputes.

2.  The Applicant was born and raised in Blitar, East Java, Indonesia. After leaving school she married her husband and moved to his home district in Madiun in East Java to raise their family with 3 children.

3.  As her children grew older the Applicant in 2013 went to Singapore to work as a domestic servant before coming to Hong Kong in 2016 to work as a foreign domestic helper.

4.  In 2021 the Applicant discovered that her husband was having an affair with another woman while she had been away from home working in Hong Kong, but when she confronted him on the phone and demanded a divorce, her husband became furious and insisted that he would not want any divorce, and threatened to kill her if she dared to leave him or divorce him.

5.  As a result of her husband’s threats, the Applicant became fearful for her life, and so after her last employment was prematurely terminated in July 2023, she 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 3 October 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 20 October 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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her husband over her demand for divorce upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her husband to seriously harm or kill her other than just some angry words and empty threats or any reason for him to harm her given that she has never taken any concrete step to divorce him, that in any event it was a private marital dispute between just the 2 of them 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”) 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 Jakarta or Surabaya where it would be difficult if not impossible for her husband to locate her.

8.  On 2 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 2 February 2024 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 27 February 2024 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1] the Board similarly found no reliable evidence of any real intention of her husband to seriously harm or kill the Applicant other than some angry words and empty threats, and that in any event it was a private marital 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 as 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 that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 12 March 2024 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 and just directly dismissed it without taking 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 their translations;

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

11.  These are however 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 how did the Adjudicator fail to give her time to arrange for translation of her supporting documents when she never raised any such request during the hearing or even tried to submit any documents to the Board, or in what way was the interpreter impatient or unhelpful to her during her hearing before the Board. 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 her 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 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 parts 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.

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.  Moreover, the Applicant has recently on 8 July 2026 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.

16.  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