Ita Sriwahyuni v. Torture Claims Appeal Board

HCAL 1297/2021

[2025] HKCFI 6471

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1297 OF 2021

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

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 35-year-old national of Indonesia who last arrived in Hong Kong on 17 May 2019 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 12 January 2021 or within 14 days of its early termination, but when her employment was prematurely terminated on 7 October 2020, she did not depart and instead overstayed, and was arrested by police on 7 December 2020.  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 the curse of her father’s creditor due to her fathers’ unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Dongko, Trenggalek, Jawa Timur, Indonesia. After leaving school she in 2012 started to come to Hong Kong to work as a foreign domestic helper to make her living, returning to her home village in Indonesia only for her holidays.

3.In 2016, her father for the purpose of expending his farming in the home village borrowed a loan from a fellow farmer from the same village by the name of Senin with 2 of his cows as securities for the loan, and for which her father was initially able to make some repayments, but by July 2016 when he was unable to repay the rest of his loan due to poor harvest of his farming, Senin came to confiscate the 2 cows, but as it was still not sufficient to meet the balance, Senin who was known to be able to use black magic was not happy and therefore put a curse on the Applicant’s mother.   

4.As a result, her mother was always not in good health, and often for no reason suffered from bolts of fevers and body aches, and as Senin had also threatened to put curses on other members of her family that the Applicant would only stay in her sister’s place in the neighboring village whenever she returned to Indonesia for holidays, and so when her last employment was prematurely terminated on 7 October 2020, she was afraid to return to Indonesia 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 28 July 2021 and attended screening interview before the Immigration Department with legal representation.             

5.By a Notice of Decision dated 2 September 2021 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”).

6.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 the curse of her father’s creditor Senin upon her return to Indonesia as low due to the absence of any past ill-treatment from him, that there is in fact no credible evidence of any such harm being inflicted by Senin on her mother or that her mother’s alleged health conditions were the result of Senin’s curses as claimed other than the Applicant’s own superstitions and speculations, that in any event it was a private monetary dispute between her father and Senin 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 260 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 or Bali where it would be difficult if not impossible for Senin to locate her.

7.The Applicant never brought any appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision despite being advised to do so in the end of the decision if she felt aggrieved by it, but instead on 15 September 2021 she filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and no ground for seeking relief was given in her Form or her supporting affirmation of the same date in which she just asserted that the decision was written in Chinese which she was unable to read or understand but without putting forth any proper ground for her intended challenge, nor was she able to do so at the hearing of her application or to provide any explanation for not first bringing any appeal to the Board.

8.As such, and as the Applicant has failed to bring any appeal to the Board in pursuance of Section 37ZR (b) of the Immigration Ordinance and under the 2-tier screening process of her claim by both the Director and the Board under the Unified Screening Mechanism (“USM”), I do not find any legal or procedural basis for her to challenge the Director’s decision instead by her present leave application to the Court for judicial review thereof, and accordingly I dismiss her application.

Dated the 31^st day of December 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