Case Document

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HCAL 3/2023

[2025] HKCFI 1962

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 3 OF 2023

BETWEEN
	Dewi Purwatiningsih alias Purwatiningsih, Dewi	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 40-year-old national of Indonesia who arrived in Hong Kong on 24 October 2020 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 after her last employment was prematurely terminated on 1 January 2021, she did not depart and instead overstayed, and was arrested by police on 20 September 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 step-brother over their personal disputes.

2.The Applicant was born and raised in Village Kawunganten Lor, Sub-district Kawungaten, Cilacap Regency, Central Java, Indonesia where she was raised by her mother after her parents’ divorce.

3.After leaving school she worked as a domestic servant in her home district and then in Singapore until 2014 when she returned to her home village in Indonesia to reside with her mother.

4.Later in the same year her mother remarried, whereupon her step-father and step-brother moved in to reside with them as a family, while the Applicant also married her husband and soon gave birth to her daughter.

5.Soon the Applicant discovered that her step-brother who was a few years younger was attracted to her, and when there was no other person in the house he would approach her for sex, and when she refused, insisting that she was already married with a child, he just would not listen and continued to pester her with his demand.

6.As the Applicant kept rejecting him, her step-brother eventually lost his patience and on one occasion threatened to kill her with a knife if she were to continue to resist him or to refuse to have sex with him.

7.To avoid his threats and harassments, the Applicant decided to leave the country by applying to work in Hong Kong as a foreign domestic helper, which she eventually did in October 2020, but while she was in Hong Kong, her step-brother was somehow able to get hold of her cell phone number and started to make threatening calls to her, and so when her last employment was 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 she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 10 November 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.By a Notice of Decision dated 28 January 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”).

9.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 step-brother 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 step-brother to seriously harm or kill her, that in any event it was a private personal dispute between the 2 of them within their family 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 Surabaya where it would be difficult if not impossible for her step-brother to locate her.

10.On 22 March 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 29 June 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 3 November 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision.

11.In its decision 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 step-brother or her newly added risk of harm from her creditor over her outstanding debts that caused her to overstay in Hong Kong to seek protection, that even if her such claimed risks were real that there was no reliable evidence of any real intention of her step-brother or her creditor to seriously harm or kill her over what were essentially private domestic or 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 her step-brother or her creditor that her claim for non-refoulement protection failed on all applicable grounds.

12.On 3 January 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date to which she just attached a copy of the decision but without putting forth any proper ground for her intended challenge. As such, and in the absence of any error of law or irrationality 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 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 fact is that it has been established by both the Director and the Board in their respective decisions that the risks of harm in her claim even if real are localized ones 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.

15.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 recently on 18 March 2025 filed an affirmation requesting to withdraw her application as she wants to return to her home country as soon as possible but without any explanation as to what has happened to her claimed risk in Indonesia.

17.In the premises, 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 therefore refuse to grant leave and accordingly dismiss her application.

Dated the 15^th day of May 2025

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 15 May 2025 Dewi Purwatiningsih alias Purwatiningsih, Dewi Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 15 May 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 20067 Director of Immigration Putative Interested Party’s ref. no.: ImmD/CR T/C 2113/21 (formerly RBCZ 5000289/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)