Parinah v. Torture Claims Appeal Board

HCAL 785/2022

[2025] HKCFI 4603

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 785 OF 2022

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 41-year-old national of Indonesia who last arrived in Hong Kong on 31 August 2006 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 last employment was prematurely terminated on 9 June 2009, she did not depart and instead overstayed, and was arrested by police some 10 months later on 23 April 2010.  After she was referred to the Immigration Department for investigation, she raised a torture claim on the basis that if she returned to Indonesia she would be harmed or killed by her abusive husband over their domestic disputes, and after it was rejected she then sought non-refoulement protection on the same basis.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Magetan, Jawa Timur, Indonesia.  After leaving school she worked as a shop keeper, married her husband and raised a family with a daughter in her home district.

3.In 2006, she came to Hong Kong to start her employment as a foreign domestic helper, and in mid-2009 she received a telephone call from her father informing her that her husband was seriously ill with a stroke and was partially paralyzed, and urged her to return to Indonesia as soon as possible.

4.The Applicant therefore terminated her then employment and made arrangement to return to Indonesia in June 2009, but 2 days before her scheduled flight, she lost her passport and travel documents that she was unable to get on the flight, of which she immediately informed her family that she would have to delay her return to Indonesia as she had to apply for a replacement of her travel documents, but her husband became furious and suspected that she was having an affair with another man in Hong Kong, and threatened her not to bother to return home, of which the Applicant perceived as a threat against her and hence she became afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police she raised her torture claim, and after it was rejected she then sought non-refoulement protection, for which she completed a Supplementary Claim Form (“SCF”) on 17 December 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 23 June 2021, the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

6.In his decision, the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by her husband upon her return to Indonesia due to the absence of any past ill-treatment from him, that there is no reliable evidence of any real intention of her husband to seriously harm or kill her other than just angry words and empty threats, that in any event it was a private domestic dispute between the 2 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 275 million people spread across a vast territory of more than 1.8 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 husband to locate her.

7.On 5 July 2021, 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 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 10 June 2022, her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision[1], the Board accepted the Applicant’s claim of threats from her husband over their domestic dispute as alleged but found no reliable evidence of any real intention of her husband to seriously harm or kill her other than just angry words and empty threats and that it is not accepted that he would still harbor any ill will towards her after all these years, and that in any event it was a private domestic dispute between just the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia if resorted to that it concluded that her claim for non-refoulement protection failed on all applicable grounds.    

9.On 17 August 2022, 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, nor did she request any oral hearing for her application. 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.

10.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.

11.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.

12.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 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.                

13.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.

14.Moreover, the Applicant recently on 24 July 2025 filed an affirmation requesting to withdraw her application as her problem in her home country has been resolved that it is now safe for her to return to Indonesia.

15.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 that it is safe for her to return to her home country, I accordingly dismiss her leave application.

Dated the 10^th day of October 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