Case Document

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HCAL 384/2024

[2025] HKCFI 3106

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 384 OF 2024

BETWEEN
	Lilik Setiani alias Lilik-Setiani alias Setiani Lilik	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;

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 48-year-old national of Indonesia who last arrived in Hong Kong on 3 October 2014 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 3 October 2016 when she did not depart and instead overstayed, and was arrested by police more than 4 years later on 31 July 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 parents’ creditor over their unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in DS Besole, Besuki, Tulungagung, Jatim, Indonesia. After leaving school she married her husband and raised a family with a daughter in her home district.

3.After subsequently divorcing her husband, the Applicant in 2006 started to come to Hong Kong to work as a foreign domestic helper to support her daughter.

4.In 2016 her father was hospitalized for a heart operation, and to meet the medical expenses her parents borrowed a loan from a local money-lender, and for which the Applicant would remit part of her salary every month to assist them with their loan repayments.

5.However, after she completed her last employment in October 2016 and was unable to find another employment, the Applicant was unable to make any more remittances to her parents, and after they subsequently passed away without paying off their loan, their creditor in Indonesia started to make threatening phone calls to the Applicant demanding her to pay off her parents’ debts, and so she was afraid to return to Indonesia, and upon her subsequent arrest by police for overstaying in Hong Kong, the Applicant then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 15 December 2021 and attended screening interview before the Immigration Department with legal representation.

6.By a Notice of Decision dated 18 March 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”).

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 her parents’ creditor upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from the creditor, that there is no evidence of any real intention of her parents’ creditor to seriously harm or kill her other than to press her to repay her parents’ loan, that in any event it was a private monetary dispute between her and her parents’ creditor 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 1.9 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 Bali or Jakarta where it would be difficult if not impossible for her parents’ creditor to locate her.

8.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 27 July 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 21 February 2024 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 her parents’ creditor that caused her to overstay in Hong Kong to seek protection, that even if her account of events as regard her parents’ loan and threats from their creditor were true that there was no reliable evidence of any real intention of her parents’ creditor to seriously harm or kill her other than to press her to repay her parents’ loan, and that in any event it was a private monetary dispute between her and her parents’ creditor 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 parents’ creditor that her claim for non-refoulement protection failed on all applicable grounds.

10.On 29 February 2024 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1) That the Adjudicator did not consider the Applicant’s case properly and just dismissed it without taking any time to think about her life;

(2) That the Adjudicator unreasonably refused to allow the Applicant to produce her documents without English translation or to give her time to arrangement for their translation;

(3) That the interpreter was impatient and unhelpful and just pressed her to give her evidence quickly without proper understanding.

11.These are however just some bare and vague assertions of the Applicant without any relevant or necessary 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, or how did the Adjudicator fail to properly consider her case or to give her time to arrange for the translation of her documents when according to the record that no such issue ever arose during her appeal hearing, or in what way was the interpreter impatient or unhelpful. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant either in her affirmation or at the hearing of her application, I do not find any of them reasonably arguable for her intended challenge.

12.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.

13.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.

14.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.

15.For all these reasons I am 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 31^st 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 31 July 2025 Lilik Setiani alias Lilik-Setiani alias Setiani Lilik 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 31 July 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 20102 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2318/21 (Formerly RBCZ 5000021/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)