Wahyuningsih v. Torture Claims Appeal Board

HCAL 1714/2023

[2025] HKCFI 3770

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1714 OF 2023

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 39-year-old national of Indonesia who last arrived in Hong Kong in 2020 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her employment was prematurely terminated in October 2020, she did not depart and instead overstayed, and was arrested by police some 2 years later on 17 October 2022.  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 creditor over her unpaid debts.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Swaru, Damarwulam, Kepung, Kediri, Jwatimur, Indonesia.  After leaving school she worked as a restaurant waitress in her home district to make her living before going abroad in 2011 to work as a domestic helper in Taiwan, and then in 2015 she came to Hong Kong to work as a foreign domestic helper.

3.In 2016 she took a holiday from her employment to return to Indonesia to marry her husband, during which they decided to purchase their own matrimonial home by means of a loan borrowed by the Applicant from a local money-lender to be repaid by monthly instalments from her salary to be remitted from Hong Kong, and upon receiving the loan she then handed it over to her husband to look for a property in Indonesia, whereupon she returned to Hong Kong to continue with her employment.

4.However, shortly thereafter she started to lose contact with her husband who never answered her phone, and eventually she suspected that she had been cheated by her husband with the money, but she was obliged to continue with her loan repayments until 2019 when she stopped do so due to financial difficulties despite repeated demands from her creditor.

5.In early 2020 when she returned to Indonesia for holiday, she stayed in her parents’ place to avoid her creditor who however was able to locate her and made threats against her over her outstanding debts with a warning that next time she would be killed if she still failed to repay her loan, whereupon the Applicant immediately fled from Indonesia to return to Hong Kong.

6.However, after her last employment was terminated in October 2020, the Applicant was afraid to return to Indonesia due to the threats from her creditor 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 8 December 2022 and attended screening interview before the Immigration Department with legal representation.

7.By a Notice of Decision dated 26 January 2023 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”).

8.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 creditor and followers upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, that in any event it was a private monetary dispute between her and her 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 277 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 her creditor to locate her.

9.On 8 February 2023 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 1 August 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 12 September 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision[1] the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence that it doubted and rejected the credibility of her claim of fear of harm from her creditor over any debts 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 the termination of her employment in October 2020 until some 2 years later and only after her arrest by the police, that the Board concluded that there was no reliable evidence of any loan borrowed from any creditor for the purchase of any property or of any husband that she claimed to have married and then disappeared with the money that it determined that the Applicant had wholly invented and fabricated her account of events in Indonesia for non-refoulement purpose that it is not accepted that she would face any real risk of being harmed by anyone upon her return to Indonesia that her claim for non-refoulement protection failed on all applicable grounds.

11.On 25 September 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 in which she just stated that she does not agree with 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 of the Board’s decision.

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 Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 28 – 62 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law 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 to challenge the finding of the Board.

14.Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, a decision also agreed and confirmed by the Board, 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 June 2025 in writing requested to withdraw her application as she now wants to return to her home country.

17.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, and in view of her latest confirmation of her wish to withdraw her application and to return to her home country, I accordingly dismiss her leave application.

Dated the 2^nd day of September 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