Rustinih v. Torture Claims Appeal Board

HCAL 2017/2025

[2026] HKCFI 442

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2017 OF 2025

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 arrived in Hong Kong on 7 February 2023 with permission to work as a foreign domestic helper until the expiration of her employment contract on 7 February 2025 or within 14 days of its early termination, but when her employment was prematurely terminated on 4 May 2023, she did not depart and instead overstayed, and was arrested by police more than 1 ½ years later on 24 November 2024.  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 and/or their creditor over their monetary dispute.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Village Sumur Adem, Indramayu, Indonesia. After leaving school she assisted her mother in her food hawking business, married her husband and raised a family with a son in her home village.

3.In 2019 she and her husband started their own rice farming business with the help of a loan borrowed from a fellow villager to be repaid by monthly instalments.

4.However, they were unable to obtain any good harvest of their crops, and by the end of 2020 they were having difficulty repaying the loan, but their creditor agreed to their request to extend the repayment deadline to the end of 2021, whereupon her husband went to Jakarta to look for jobs so as to repay the loan, while the Applicant also applied to work as a foreign domestic helper in Hong Kong.

5.Accordingly on 7 February 2023 the Applicant departed Indonesia for Hong Kong to start her employment and to remit part of her monthly salary to her husband for the repayment of the loan, but when her employment was subsequently terminated in May 2023 and that she was unable to remit any money to her husband, both her husband and their creditor started to make threats against her, and so she became 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 14 February 2025 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.By a Notice of Decision dated 23 April 2025 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 is any real and foreseeable risk of her being harmed or killed by her husband or creditor upon her return to Indonesia due to the absence of or low intensity and frequency of past ill‑treatment from them, that there is no evidence of any real intention of either of them to seriously harm or kill her other than to press her for money to repay the loan, that in any event it was a private monetary dispute between 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 281 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 Surabaya or Bali where it would be difficult if not impossible for her husband or creditor to locate her.

8.On 6 May 2025 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 18 June 2025 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 15 August 2025 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision[1] the Board accepted the Applicant’s claim of her fear of harm from her husband and creditor but found no reliable evidence of any real intention of either of them to seriously harm or kill her other than to press her for money to repay the loan, and that in any event it was a private monetary dispute between them 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 either her husband or creditor that her claim for non-refoulement protection failed on all applicable grounds.    

10.On 5 September 2025 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.

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 her 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 fact is that it has been correctly established by both the Director and the Board in their respective decisions 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, 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 in writing requested to withdraw her application as her problems in her home country have resolved that she now wants 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 of no more problem for her to return to her home country, I accordingly dismiss her leave application.

Dated the 23^rd 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