Yati Endang Sepinep v. Torture Claims Appeal Board

HCAL 1817/2023

[2025] HKCFI 3772

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1817 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 40-year-old national of Indonesia who arrived in Hong Kong on 9 August 2019 with permission 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 last employment was prematurely terminated on 19 December 2021, she did not depart and instead overstayed, and was arrested on 11 July 2022 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 her creditor over her unpaid debts and/or her former husband for refusing to resume their relationship.  

2.The Applicant was born and raised in Gondang, Gangga, Lombok Utara, Nusa Tenggara Barat, Indonesia.  After leaving school she married her husband and raised a family with 2 children in her home district.

3.In 2011 their marriage ended after she discovered her husband was having an affair with another woman, and thereafter she went to Oman and later Dubai to work as a housemaid to make her living.

4.In 2018 she returned to Indonesia to start her own clove business with the help of a loan from a local money-lender to be repaid within 2 years and with monthly interest payments which she initially managed to make from her business income.

5.However, in August 2018 she lost her business due to an earthquake in Lombok, and in order to repay her loan she came to Hong Kong in August 2019 to work as a foreign domestic helper.

6.In June 2021 her former husband started to call her from Indonesia to ask for resumption of their relationship, and when she refused, he threatened to kill her when she returned to Indonesia, and so after her last employment was terminated in December 2021, and when she also received death threats from her creditor as she was without income to repay her loan, the Applicant was therefore afraid to return to Indonesia and instead overstayed in Hong Kong, and upon her arrest she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 7 December 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 31 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 or her former husband upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from either of them, that there is no evidence of any real intention of her creditor or her former husband to seriously harm or kill her other than to press her to comply with their demands, that in any event these were private monetary or relationship disputes between the 3 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 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 anyone to locate her.

9.On 15 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 12 June 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 5 July 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision[1] the Board accepted the Applicant’s claim of fear of harm from her creditor and former husband that caused her to overstay in Hong Kong to seek protection but found no reliable evidence of any real intention of either of them to seriously harm or kill her other than just angry words and empty threats to press her to comply with their demands, and that in any event these were private personal disputes between the 3 of them without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia that her claim for non-refoulement protection failed on all applicable grounds.

11.On 10 October 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 to which she just attached a copy of 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 for the thorough and detailed analysis and reasoning set out in 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 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, 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 13 June 2025 filed an affirmation requesting to “cancel” her application but without providing any reasons or any supporting details or particulars or elaboration as to what happened to her claimed risks in 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, I therefore refuse to grant leave and accordingly dismiss her 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