Watiah v. Torture Claims Appeal Board

HCAL 228/2022

[2026] HKCFI 138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 228 OF 2022

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 38-year-old national of Indonesia who last arrived in Hong Kong on 22 March 2018 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 22 March 2020 or within 14 days of its early termination, but upon the expiration of her employment on 22 March 2020, the Applicant did not depart Hong Kong and instead overstayed, and was arrested by police some 7 months later on 6 November 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 her husband over their domestic dispute.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Village Dukuh, Sub-district Kapetakan, Cirebon, West Java, Indonesia.  After leaving school she worked as a saleslady in her home district before going to Singapore in 2009 to work as a domestic helper, and then in 2013 she came to Hong Kong to work as a foreign domestic helper to make her living.

3.In 2015 she returned to Indonesia to marry her husband and raised a family with a son in her home district until 2018 when she again came to Hong Kong to work as a foreign domestic helper.

4.In early 2019 she formed a lesbian relationship with a fellow Indonesian in Hong Kong, but when their relationship was later discovered by her husband after seeing their intimate photos on her Facebook account, her husband became furious and telephoned her to threaten to kill her when she returned to Indonesia, while her family and relatives also disapproved of her conduct.

5.Henceforth upon the expiration of her last employment in March 2020 the Applicant 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 7 June 2021 and attended screening interview before the Immigration Department with legal representation.

6.By a Notice of Decision dated 20 July 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”).

7.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 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 just 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 267 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 Bali or Papua where it would be difficult if not impossible for her husband to locate her.

8.On 5 August 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 13 December 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 7 April 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence about her claimed lesbian relationship with a fellow Indonesian in Hong Kong that it doubted the credibility of her claim of fear of harm from her husband over her such relationship that caused her to overstay in Hong Kong to seek protection, that there was no reliable evidence that she did in fact form such a relationship as asserted or of her claimed sexual orientation that it is not accepted that she has in fact any homosexual or bi-sexual behavior or orientation that would attract any threats from her husband or family members or fellow Muslim villagers or the Muslim community in general in the absence of any reliable evidence of her being a lesbian as alleged, that her credibility was further undermined by her failure to raise her claim until some 7 months after her overstay in Hong Kong and only after her arrest by the police, and that in any event it was a private domestic dispute between her and her husband within their family only without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by anyone that her claim for non-refoulement protection failed on all applicable grounds.

10.On 20 April 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 in which she just stated that she rejects the decision as it disregarded her dangerous situation but without providing any relevant or necessary details or particulars or elaboration as to how it did so.  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.

11.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.

12.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 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.

13.Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions 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, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.In the premises, and 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.

15.It is of note that the Applicant recently on 25 November 2025 filed an affirmation requesting to withdraw her application but without providing any reason or explanation as to what happens to her claimed risk in her home country.

16.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given her latest confirmation to withdraw her application, I refuse to grant leave and accordingly dismiss her application.

Dated the 9^th day of January 2026

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