IKA NICKY NURYANTI v. TORTURE CLAIMS APPEAL BOARD

HCAL 347/2024

[2026] HKCFI 1556

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 347 OF 2024

  Application for Leave to Apply for Judicial Review

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

Following:

1.   Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 1 November 2023 be refused; and

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

Observations for the Applicant:

1.   The Applicant is a 38-year-old national of Indonesia who last arrived in Hong Kong on 1 October 2017 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 10 July 2019 or within 14 days of its early termination, but when her employment was prematurely terminated on 1 September 2018, she did not depart and instead overstayed, and on 3 April 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 husband over their domestic disputes.  She was subsequently released on recognizance pending the determination of her claim.

2.   The Applicant was born and raised in Blitar, East Java, Indonesia.  After leaving school she married her husband and raised a family with a daughter in her home district.

3.  However, she soon found her husband too lazy to work and instead frequently relied on borrowing loans, and when being pressed by his creditors for repayments, he would vent his anger on the Applicant by beating her and demanding that she should go out to work to help him to repay his debts, and so in 2011 she went to Singapore to work as a domestic helper before coming to Hong Kong in 2013 to work as a foreign domestic helper and to remit money to her husband in Indonesia for his use.

4.  However, after her last employment was prematurely terminated in September 2018, and when she was unable to remit any money to him, her husband became furious and threatened to kill her, and so she was afraid to return to Indonesia and therefore overstayed in Hong Kong, and subsequently surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 29 July 2020 and attended screening interview before the Immigration Department with legal representation.             

5.  By a Notice of Decision dated 14 October 2020 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 assessed the level of risk of harm from her husband 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 angry words and empty threats to press her for money for his use, that in any event it was a private monetary or domestic dispute between just the 2 of 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 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 where it would be difficult if not impossible for her husband to locate her.

7.  On 27 October 2020 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 13 October 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 1 November 2023 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 husband to seriously harm or kill her other than just angry words and empty threats to press her for money for his use, and that in any event it was a private domestic 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 whatever risk that may arise from her husband’s threats that her claim for non-refoulement protection failed on all applicable grounds.    

9.  On 20 February 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 puts forward the following grounds for her intended challenge:

(1)   That the Adjudicator did not consider her claim and directly dismissed it without even taking any time to think about her life;

(2)   That the Adjudicator unreasonably to allow her to submit her supporting documents without their 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 appeal hearing before the Board.

10.  By then the Applicant was however out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

11.  As the last day of the three-month period for her to file her Form 86 fell on 1 February 2024, the Applicant was therefore some 19 days late with her application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

12.  In the Applicant’s case, a delay of 18 days must be considered as significant, for which she did not provide any explanation or reasons in her Form or affirmation, and as the record shows that the decision was sent on the same day of 1 November 2023 to her the reported address without being returned through undelivered post, I am unable to see any good or valid reason for her significant delay.      

13.  As for the merits, if any, of her intended application, those grounds put forward by the Applicant are all just some bare and vague assertions 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 in refusing to allow her to submit her supporting documents or to give her time to arrange for their translations, or how was the interpreter unhelpful or impatient to her during her appeal 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 or any merits in her intended application.

14.  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.

15.  In the Applicant’s case, the Board rejected her claim upon finding on the factual basis of even her own case that it was a private domestic dispute between her and her husband only without any official involvement that state and police protection would be available to negate whatever risk that may arise from her husband upon her return to Indonesia as also correctly found by the Director that I do not find any reasonably arguable basis to challenge the finding of the Board.

16.  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 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.                

17.  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.

18.  It is also of note that the Applicant has recently on 26 January 2026 in writing requested to withdraw her application as she wants to return to Indonesia but without any explanation as to what has happened to her claimed risk in her home country.

19.  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 extend time 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