Sri Syamsiah v Torture Claims Appeal Board

HCAL 1585/2023

[2025] HKCFI 4601

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1585 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 41-year-old national of Indonesia who last arrived in Hong Kong on 28 June 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 last employment was prematurely terminated on 10 September 2021, she did not depart and instead overstayed, and was arrested by police on 12 May 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 husband over their marital disputes. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Candi, Rembang Sub-district, Purbalingga, Central Java, Indonesia. After leaving school she worked as a domestic helper in Singapore and Taiwan before returning to Indonesia in 2005 to marry her husband and raised a family with a daughter in her husband’s home district in Palembang.

3.  As her husband’s income as a construction worker was limited, the Applicant in 2008 resumed working as a domestic helper in Taiwan before coming to Hong Kong in 2011 to work as a foreign domestic helper and to remit money to her husband for the support of their daughter, but for the next several years their marital relationship began to fade and deteriorate.

4.  In 2016, the Applicant returned to Indonesia to demand to separate or divorce her husband which led to heated quarrels between them, during which her husband insisted that their daughter must remain with him, and threatened to kill the Applicant if she dared to claim custody of their daughter.

5.  As she became fearful for her safety, the Applicant therefore returned to work in Hong Kong shortly thereafter but stopped any further contact with her husband, and instead diverted her monthly remittances for her daughter to her sister-in-law.

6.  In 2020, the Applicant returned to Indonesia for holiday but stayed in her sister’s place without any contact with her husband before returning to Hong Kong to continue with her employment as a foreign domestic helper, but when her last employment was prematurely terminated on 10 September 2021, as she was still in fear of her husband’s threats, she therefore did not return to Indonesia and instead 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 14 June 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 8 July 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”).

8.  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 low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her husband to seriously harm or kill her other than 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 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 husband to locate her.

9.  On 20 July 2022, 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 31 May 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 29 August 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 threats from her husband over their marital disputes and custody issue of their daughter, but found no reliable evidence of any real intention of her husband to seriously harm or kill her over their domestic disputes that it doubted her claim of such fear of harm from her husband to cause her to overstay in Hong Kong, and that in any event their matrimonial or custodial disputes over their daughter would be a matter for the Indonesian authorities and court of law to deal with in the event of their intended divorce, and that it is not accepted that the Applicant will face any risk of being harmed by her husband arising from such disputes between them upon her return to Indonesia that it concluded that her claim for non-refoulement protection failed on all the applicable grounds.    

11.  On 6 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 repeated her claim as before 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 findings 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 decsiiona lso 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 12 August 2025 in writing requested to withdraw her application as it is now safe for her 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 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