RIA ANDRIANI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1121/2023

[2026] HKCFI 3804

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1121 OF 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

The application for leave to apply for Judicial Review be dismissed. 

Observations for the Applicant:

1.  The Applicant is a 41-year-old national of Indonesia who last arrived in Hong Kong on 20 July 2019 with permission to continue 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 20 January 2021, she did not depart and instead overstayed, and was subsequently arrested by police more than 4 months later on 8 June 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 elder sister over some personal dispute between them. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Ribu Ribu, Lampung Province, Indonesia. After leaving school she worked as a domestic helper in Singapore before coming to Hong Kong in 2017 to work as a foreign domestic helper to make her living, and would return to Indonesia only for holidays to stay in the home of her elder sister in North Lampung being her only family member after the passing of her parents.

3.  In December 2020 while working in Hong Kong, her elder sister called her on the phone from Indonesia informing her that she had arranged for her to marry a friend of hers who was a wealthy businessman and owned a factory in Indonesia, but when the Applicant refused as she had never met the man and was not interested in getting married, her sister became furious and threatened to kill her for failing to heed her demand, whereupon the Applicant changed her telephone number and ceased all further contact with her sister.

4.  However, after her last employment was prematurely terminated in January 2021, the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police in June 2021, she then raised her non‑refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 15 November 2021 and attended screening interview before the Immigration Department with legal representation.             

5.  By a Notice of Decision dated 10 February 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 all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by her elder sister upon her return to Indonesia due to the absence of or low intensity and frequency of past ill-treatment from her elder sister, that there is no evidence of any real intention of her elder sister to seriously harm or kill her other than just angry words and empty threats, that in any event it was a private and personal dispute between her and her elder sister 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 267 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 elder sister to locate her.

7.  On 21 February 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 11 January 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 21 June 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1] the Board found material inconsistencies and implausibility in the Applicant’s claim that her elder sister would threaten to kill her over such personal matter and without any reliable evidence of any real intention of her sister to seriously harm or kill her for refusing to marry the man as arranged by her sister other than just some angry words and empty threats made on a telephone call some years ago, and that in any event it was a private 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 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 sister that her claim for non-refoulement protection failed on all applicable grounds.    

9.  On 7 July 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) Procedural impropriety in failing to consider the facts that she had relied on for her claim that she cannot return to her home country;

(2) Failure to consider her fear that her enemies are still looking for her that her life would still be in danger if returned to her home country;

(3) Failure to consider the facts of her claim properly under BOR 2 and BOR 3 risks;

(4) Failure to consider the relevant COI in the assessment of her claim.         

10.  These are however all just some bare and vague assertions of the Applicant containing a few key words or phrases but 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 take into account relevant COI in the assessment of her claim. 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 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.

12.  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.

13.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions 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 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 7 May 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