Case Document

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HCAL 870/2025

[2025] HKCFI 2971

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 870 OF 2025

BETWEEN
	Siti Nuraeni alias Siti-Nuraeni alias Siti, Nuraeni alias Nuraeni, Siti	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:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 35-year-old national of Indonesia who last arrived in Hong Kong on 19 May 2023 with permission to work as a foreign domestic helper until the expiration of her employment contract on 19 May 2025 or within 14 days of its early termination, but when her employment was prematurely terminated on 22 July 2023, she did not depart and instead overstayed, and was arrested on 18 February 2024 for breach of her conditions of stay and for undertaking unauthorized employment, for which she was subsequently convicted and sentenced to prison for 15 months, during which she raised a non-refoulement claim for protection to the Immigration Department on the basis that if she returned to Indonesia she would be harmed or killed by a man in her home district for rejecting his marriage proposal.

2.The Applicant was born and raised in Banyumas City Province, Central Java, Indonesia. After leaving school she worked in the factory in her home district to make her living.

3.In 2011 she went to Taiwan to work as a domestic helper until 2014 when she returned to Indonesia to work in the cleaning service, and in 2017 she first came to Hong Kong to work as a foreign domestic helper, during which she met and formed a lesbian relationship with her girlfriend.

4.In 2020 she returned to her home in Indonesia after completing her employment, during which a common acquaintance by the name of Tata from her home district started his romantic pursuit of her, but when she later rejected his pursuit and revealed that she is a lesbian, Tata became furious and forcefully grabbed by her hand, and threatened her with a broken bottle, but the Applicant managed to flee from the scene unharmed.

5.To avoid further threats and harassments from Tata, the Applicant therefore departed Indonesia on 19 May 2023 to again come to Hong Kong to work as a foreign domestic helper, but when her employment was prematurely terminated on 22 July 2023, she was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent arrest and was put in prison for breaching her condition of stay and for undertaking unauthorized employment, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 21 November 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 3 January 2025 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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Tata 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 Tata to seriously harm or kill her over her refusal of his marriage proposal or any reason to expect that he would still have any adverse interest in her after all these years since she left the country, that in any event it was a private and personal 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 281 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 where it would be difficult if not impossible for anyone to locate her.

8.On 10 January 2025 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 25 February 2025 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 25 March 2025 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.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 Tata that caused her to overstay in Hong Kong to seek protection, that even if her account of events prior to her departure from Indonesia were true that there was no reliable evidence of any real intention of Tata to seriously harm or kill her over her refusal of his marriage proposal or that he would still have any adverse interest in her after all these years since she left the country, and that in any event it was a private and personal dispute between 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 Tata that her claim for non-refoulement protection failed on all applicable grounds, and while she never in her claim or before the Board raised any fear of discriminations or persecutions against her in her home country due to her claimed sexual orientation, nor did she disclose of any such experience in the past, the Board nevertheless proceeded to consider from the relevant COI and applicable principles to conclude that there is no evidence to suggest that the Applicant would face any such risk upon her return to Indonesia either.

10.On 11 April 2025 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, nor did she request any oral hearing for her application. 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.

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 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.

12.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 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.

13.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.

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

Dated the 29^th day of July 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 29 July 2025 Siti Nuraeni alias Siti-Nuraeni alias Siti, Nuraeni alias Nuraeni, Siti 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 29 July 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 25415 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2673/24 (formerly RBCZ 5002353/24) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)