Sri Wahyuningsih v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1154/2025

[2025] HKCFI 3311

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1154 of 2025

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review be refused

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 19 May 2025 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 6 May 2025 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 27 February 2025 (the “Notice”), refusing her application for non-refoulement protection. 

Background

2.The Applicant is an Indonesian national.  She last entered Hong Kong on 18 August 2018 to work as a foreign domestic helper.  She overstayed since 12 May 2023 after her employment had been prematurely terminated.  On 27 May 2024, she was arrested by the police.  On 30 May 2024, she was convicted of the offences of breach of condition of stay by overstaying and taking employment while remaining in Hong Kong in breach of her condition of stay.  She was sentenced to 14 months’ imprisonment.  On 9 December 2024, while serving her sentence, she raised a non-refoulement claim. Her claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk^[1]; BOR 3 Risk^[2]; Persecution Risk^[3]; and BOR 2 Risk^[4]. Her application was refused by the Director’s Notice.  Her appeal was dismissed by the Board’s Decision.  She now applies for leave to apply for judicial review of that Decision.  

The Applicant’s case

3.The following account of the Applicant’s case is based on the information in the non-refoulement claim form prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer.  In gist, she claims that if returned to Indonesia, she will be harmed or killed by her husband because of her sexual orientation.   

4.The Applicant, now aged 33, was born in Pati, Jawa Tengah, Indonesia.  Her parents and brother are living in Indonesia.  She had 12 years’ formal education and had seven years’ experience working as a domestic helper in Malaysia and Hong Kong.  

5.She is married to her husband through an arranged marriage in 2013.  They have a daughter.  In 2014, her husband started subjecting her to domestic violence.  When she confronted him about his infidelity, he became furious.  He slapped her face and punched her shoulder.  These incidents occurred almost thrice a week.  She did not report the matter to the police, and did not seek any medical treatment.  Before she went to work in Malaysia in early 2015, they agreed to live separately.  She had no direct contact with him since.

6.Whilst working in Malaysia, she realised that she was attracted to women because she felt comfortable with them.  She kept it a secret from her parents as she knew they practised Islam strictly and would not accept her as a lesbian.  Shortly after arriving in Hong Kong, she found her girlfriend.  In March 2023, she told her parents over the phone about her sexual orientation and her relationship with her girlfriend.  Her father strongly disapproved it, as it was against his belief and the traditions.  He regarded her behaviour as bringing shame on the family and asked her not to return home if she continued to date women.  In April 2023, she received several calls from her parents informing her that her husband had called them three to four times to utter death threats on her because she had brought shame on him.  She firmly believed her husband would kill her if she were returned to Indonesia because of his strong resentment to same-sex relationships.  

7.The Applicant claims that state protection is not available, as the police in Indonesia would consider her dispute with her husband as a family matter.  She does not believe internal relocation feasible because she does not have the resources to live elsewhere in Indonesia.  

The finding of the Board

8.The Applicant testified before the Board.  Her husband’s death threats were made to her through her parents.  The Board found that apart from being hearsay, the evidence was clear that he had done nothing to suggest that he was serious in carrying out his threats.  He did not even bother to ask her family for her phone number in order to deliver the threat to her directly. Since her family also disapproved her sexual orientation, it was highly likely that her family would give her contact number to him, if he asked for it.  Furthermore, her relationship with her husband had turned sour since 2014 and they had been separated for over 10 years.  For these reasons, the Board found it implausible and illogical that her husband would be bothered with her sexual orientation and to harm or kill her just for that. 

9.On the basis of objective country of origin information (“COI”), the Board accepted that there is incompetence and ineffectiveness of the police in Indonesia.  However, the COI also suggested that the Indonesian government has taken practical steps to improve the Indonesian police in terms of efficiency and concerns for human rights, such as the setting up of the Corruption Eradication Commission to fight against fraud, bribery and graft of the country which has a positive effect on improving police effectiveness.

10.Though the Applicant had not raised any issue of discrimination because of her status as a lesbian, the Board also considered whether she would encounter any harm or threat from the Indonesian society in general for her being a lesbian.  While there are no specific laws to protect against discrimination based on a person’s sexual orientation, government agencies are starting to enact anti-discrimination policies in recent years.  There are also non-government organisations which protect women from gender-based violence.  Thus, the Board considered that reasonable state protection would be available to the Applicant if she returned to Indonesia.  In addition, being an able body person with 12 years of education and seven years of work experience, she could relocate to other parts of Indonesia or continue to work as foreign domestic helper overseas to avoid the perceived risk of harm from her husband, which is localized in her home area.

11.Although she had been assaulted by her husband in the past, the injuries she suffered were not serious and did not attain the minimum level of severity.

12.Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support her claims for protection under any of the applicable grounds.  Hence, it dismissed her appeal against the decision in the Notice.

Legal principles applicable to judicial review

13.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

14.In Form 86 and supporting affirmation, the Applicant had not advanced any ground of appeal.  She only reiterated in her affirmation that she was seeking help in Hong Kong because her life would be in danger in Indonesia. In effect, she is seeking to challenge the Board’s finding of fact that she had failed to prove that she would face real harm or real risk of harm if returned to Indonesia.  For reasons as explained in the above paragraph, this is not permissible in an application for judicial review. 

15.At the hearing after the legal principles in the preceding section had been explained to her, the Applicant said she had no complaints about errors of law, but would leave it to the Court to examine the Decision for such errors.  She confirmed she had no complaint about procedural unfairness or irrationality in the Decision and had no final submission to make.

16.In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. 

Overall scrutiny

17.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board assessed the Applicant’s claim on the basis of her case as she asserted.  It analysed the evidence carefully, tested it against common sense, inherent probability and independent COI.  It gave full reasons for its finding.   It found in view of the Applicant’s relations with her husband it is illogical that her husband would kill her because of her sexual origination.  In other words, the Applicant’s risk of harm is unreal.  In addition, state protection and internal relocation are feasible options to avoid or mitigate the risk of harm.  It was on that basis that the Board found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the four applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

18.For the above reasons, the leave application is refused.

Dated the 31^st day of July 2025

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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] [2018] HKCA 524 at [14(1)]