Case Document

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HCAL 1055/2018

[2025] HKCFI 3724

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1055 OF 2018

BETWEEN
	Sukarmi	1^st Applicant
	Mani Gurleen Kaur	2^nd 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:

1. Leave to amend Form 86 to include the 1^st Applicant’s daughter, Mani Gurleen Kaur as the 2^nd Applicant be granted; and

2. The 1^st and 2^nd Applicants’ application for leave to apply for Judicial Review be dismissed.

Observations for the Applicants:

1.The 1^st Applicant (“A1”) is a 42-year-old national of Indonesia who first arrived in Hong Kong in February 2004 to work as a foreign domestic helper, but when her last employment was prematurely terminated on 9 July 2014, she did not depart and instead overstayed, and almost 2 years later on 14 June 2016 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Indonesia she would be harmed or killed by her maternal uncle for refusing to marry his son and for having a boyfriend in Hong Kong, and upon subsequently giving birth to a daughter, 2^nd Applicant (“A2”) on 2 January 2017 out of her relationship with her boyfriend in Hong Kong, she also raised a non-refoulement claim for her daughter on the same basis and which was to be jointly determined together with her claim. They were subsequently released on recognizance pending the determination of their claims.

2.A1 was born and raised in Salam Wates Pakil, Salam Wates, Trenggalek, East Java, Indonesia. After leaving school she worked as a domestic helper in Malaysia and then starting in 2004 she came to Hong Kong to work as a foreign domestic helper.

3.In late September 2010 whilst she returned to Indonesia for her grandmother’s funeral, she learnt that her mother had inherited her grandmother’s house but much to the anger of her maternal uncle who then demanded that the Applicant should marry his son so that his family could also share her grandmother’s house, and when the Applicant refused, her uncle became furious and beat her severely, and threatened to kill her if she still refused to marry his son, and so the Applicant fled back to Hong Kong to stay away from her uncle’s threats.

4.The Applicant had since not returned to Indonesia, and during her stay in Hong Kong she had been told by her mother that her uncle had continued to insist that she should marry his son and threatened to kill her if she refused to do so, and so after her last employment was prematurely terminated in July 2014, she was afraid to return to Indonesia and therefore overstayed in Hong Kong, during which she formed a relationship with a local resident, and when she subsequently became pregnant with their child, she in June 2016 surrendered to the Immigration Department and raised her non-refoulement claim for protection, and upon giving birth to A2 in January 2017 she also raised a non‑refoulement claim for her, and for which she completed a Non-refoulement Claim Form (“NCF”) on 26 June 2017 jointly for herself and A2 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 20 July 2017 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”)be ingviolated 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicants’ claims and assessed the level of risk of harm from A1’s uncle upon their return to Indonesia as low due to the absence of or low intensity and frequency of past ill‑treatment from him, that there is no evidence of any real intention of her uncle to seriously harm or kill her other than out of frustration over the ownership of her grandmother’s house, that given her present relationship with her boyfriend in Hong Kong that there is no more reason for her uncle to continue to have any adverse interest in her, that in any event it was a private dispute between A1 and her uncle 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 there are laws in Indonesia to protect abused women and children in need and with supports and assistances from various governmental departments and NGOs as well as reasonable internal relocation alternatives available within the country with a large population of 258 million people spread across a vast territory that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with A2 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 uncle to locate them.

7.On 31 July 2017 A1 lodged an appeal for herself and A2 to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 13 February 2018 with the assistance of an interpreter before the Board during which A1 gave evidence and answered questions raised of their claim by the Adjudicator for the Board. On 23 April 2018 their appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found material inconsistencies discrepancies in A1’s evidence that it doubted the credibility of her claim of fear of harm from her uncle that caused her to overstay in Hong Kong to seek protection, that her credibility was further undermined by her failure to raise her claim upon her overstay until almost 2 years later when she became pregnant with A2, that even if such fear were real that there was no reliable evidence of any real intention or reason of her uncle to harm or kill her or A2 other than angry words and empty threats, and that in any event it was a private property disputes between A1 and her uncle only without any official involvement that state or police protection would be available to the Applicants upon their return to Indonesia as well as reasonable internal relocation alternatives for them to move safely to other parts of the country away from their home district without any risk of being located by A1’s uncle that their claims for non-refoulement protection failed on all applicable grounds.

9.On 8 June 2018 A1 filed a Form 86 for herself only for leave to apply for judicial review of the Board’s decision, but in her supporting affirmation she confirmed that she had intended to include A2 in the application but due to her ignorance of the law that she had failed to do so in the Form 86, for which I acceded to her request to amend the Form 86 accordingly to include her daughter as the 2^nd Applicant, and in her supporting affirmation from amongst her regurgitation of her claim and citation of some applicable principles A1 put forward various complaints which can be summarized as follows for their intended challenge:

(1) that in terms of COI both the Director and the Board had wrongfully put undue weight on reported availability of state protection when the same COI was quoted both for and against the Applicant’s assertion; and

(2) That the Board’s decision was not sent to her and there was no language assistance or translation of the Board’s decision.

10.However, those complaints under Ground (1) are just some broad and vague assertions without any relevant or necessary particulars or specifics or elaborations as to how they apply to their case or how the Director or the Board had erred in their decisions, or how did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, while for the complaint under Ground (2) which by itself per se cannot be accepted as any valid ground to challenge the Board’s decision at all. In any event the record shows that A1 was assisted by an interpreter in her oral hearing before the Board during which she was able to make her representations without difficulty and to answer many questions from the Adjudicator for the Board without any issue. As such I do not find any of the Applicant’s complaints reasonably arguable for their intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the decision of the Board.

11.I am mindful of the fact that A2 being a minor at her present age of 8 years old is not legally represented in these proceedings as required by Order 80 rule 2 of the Rules of the High Court, nor was she in her appeal before the Board, and that it would therefore be necessary to scrutinize and examine whether her claim had been properly considered and determined by the Board in a manner sufficiently to meet the high standards of fairness required in proceedings of this nature, and to see whether there are underlying matters that may support potential minor-specific non-refoulement bases which had not been properly advanced to the Board due to lack of legal representation in the appeal before the Board, as held to be essential by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971 and Re Jasvir Singh [2021] HKCA 53, in that non-refoulement claims by children are separate claims from similar claims advanced by their parents that decision-makers should consider each claim by reference to the personal circumstances of each claimant, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

12.In the present case of A2, it is clear that her claim had been considered and determined separately from her mother’s claim and that the Adjudicator did separately consider the personal circumstances specific to her as a child born to an Indonesian mother out of wedlock in Hong Kong who has never been to Indonesia by analyzing the relevant COI properly as evidenced in paragraphs 81 – 94 of the decision, and had correctly arrived at the conclusion that A2 will similarly not face any real or substantial risk under any of the applicable grounds upon her refoulement with her mother to Indonesia. As such, I do not find any error of law or procedural unfairness in her appeal to the Board or in its decision for there to be any reasonably arguable basis to challenge its findings notwithstanding the lack of legal representation for A2 in her present application as required by Order 80 rule 2 of RHC in these proceedings, and of which I shall therefore treat as a mere irregularity as adopted in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, and applied in Re Jasvir Singh, supra.

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 Applicants’ case, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in their claims if real is a localized one and that it is not unreasonable or unsafe for the Applicants to relocate to other part of Indonesia, there is simply no justification to afford them 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 Applicants’ claims.

16.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss their application.

Dated the 29^th day of August 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 Applicants on 29 August 2025 Sukarmi Mani Gurleen Kaur Applicants’ 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 August 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 7950-7951/17/7/331-332/I777-I778 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1346/17 (Formerly RBCZ 13639/16) & QA T/C 1347/17 (Formerly RBCZ 10658/17) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)