MUSRIYATI v. TORTURE CLAIMS APPEAL BOARD

HCAL 847/2023

[2026] HKCFI 3667

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 847 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 46-year-old national of Indonesia who last arrived in Hong Kong on 10 December 2019 with permission 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 30 October 2021, she did not depart and instead overstayed, and was arrested by police on 5 February 2022.  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 creditor or the creditor of her husband over their unpaid debts.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in JLN Raya Adipala, Desa Adipala, Kec Adipala, Kab Cilacap, Jawa Tengah, Indonesia.  After leaving school she came to Hong Kong to work as a foreign domestic helper to make her living.

3.  In 2017 she returned to Indonesia to marry her husband, and for the birth of her son in the hospital and to meet such expenses, her husband borrowed a loan from a bank to be repaid by monthly instalments with interests which he managed to make from his income.

4.  Later when she and her husband found it financially difficult to raise their son and at the same time to repay his loan, the Applicant decided to again come to Hong Kong to work as a foreign domestic helper, and for her agency fees and expenses the Applicant also borrowed a loan from some local money-lender to be repaid by monthly instalments plus interests.

5.  Accordingly, the Applicant on 10 December 2019 returned to Hong Kong to start her new employment as a foreign domestic helper and to remit money to her husband in Indonesia every month for the repayments of their loans.

6.  However, after her last employment was prematurely terminated on 30 October 2021 whereupon she was unable to remit any money to her husband to repay their loans, and when their creditors started to make threats against them, 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 28 April 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 29 June 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”).

8.  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 creditor or her husband’s creditor upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of either of their creditors to seriously harm or kill her other than to press her to repay their debts, that in any event these were private monetary disputes between her and the creditors 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”) shows that reasonable internal relocation alternatives are available in Indonesia with a large population of 277 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 anyone to locate her.

9.  On 7 July 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 14 April 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 23 May 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her creditor or her husband’s creditor over their unpaid debts that caused her to overstay in Hong Kong to seek protection, that there was no reliable evidence of any real intention of either creditors to seriously harm or kill her other than to press her to repay those debts, and that in any event these were private monetary disputes between 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 anyone that her claim for non-refoulement protection failed on all applicable grounds.

11.  On 1 June 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 failed to determine her claim fairly;

(2)   That the Board was in breach of procedural fairness in failing to provide proper assistance to her for her appeal;

(3)   That the Board had unlawfully fettered its discretion by refusing her appeal on the grounds that they did not satisfy the requirements;

(4)   That the Adjudicator acted in procedural unfairness in dealing with her appeal;

(5)   That the Board’s decisions to refuse her appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(6)   That the Board failed to meet the greater care and duty owed to a self-represented claimant;

(7)   That the discriminatory act of the Board towards non-refoulement claimants based on quick disposal of their claims is unacceptable and failed to determine them in the spirit of the judicial system.

12.  All these are however just 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.  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.

13.  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.

14.  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.

15.  Furthermore, 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 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, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16.  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.

17.  Moreover, the Applicant has recently on 23 April 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.

18.  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