Marni v. Torture Claims Appeal Board

HCAL 440/2022

[2026] HKCFI 476

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 440 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 41-year-old national of Indonesia who last arrived in Hong Kong on 19 January 2020 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 23 May 2021 or within 14 days of its early termination, but when her employment was prematurely terminated on 13 September 2020, she did not depart and instead overstayed, and was arrested by police on 20 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 monetary dispute. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Village Cinyawang, District Patimuan, Cilacap Regency, Central Java, Indonesia. After leaving school she married her husband and raised a family with a daughter in her home district.

3.As her husband was a farmer with little income, the Applicant in 2013 started to come to Hong Kong to work as a foreign domestic helper to supplement her family’s income.

4.In 2018, she was told by her husband that he had borrowed a loan from some local money-lender to support their family that he needed her to help him to repay his loan by bringing him money next time when she returned home for holiday, but later when she heard from her sister that her husband had in fact borrowed the loan for drinking and womanizing in Indonesia while she was away working in Hong Kong.  As a result, the Applicant became furious and confronted her husband on the phone which led to a heated argument between them, during which her husband threatened that he would kill her if she failed to bring him money next time when she returned to Indonesia.   

5.As a result, the Applicant became fearful for her life and ceased all further contact with her husband, and after her last employment was prematurely terminated in September 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 30 June 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.By a Notice of Decision dated 28 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 assessed the level of risk of harm from her husband upon her return to Indonesia as low 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 1.9 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.

8.The Applicant then 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 January 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 22 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 discrepancies and contradictions in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her husband over any dispute between them that caused her to overstay in Hong Kong to seek protection, that her credibility was further undermined by her failure to raise it upon the expiration of her employment contract and did so only after 2 months and after her arrest by the police, and that her evidence given at the hearing to the Board of not having any contact with her husband since 2017 and did not know anything about any debts or loan of her husband wholly contradicted what she had earlier stated to the Director for her claim that the Board concluded that the Applicant had fabricated her claim and upon her failure to establish any real risk of being harmed by her husband for any reason upon her return to Indonesia that her claim for non-refoulement protection failed on all applicable grounds.    

10.On 7 June 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. 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 correctly 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.                

14.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.Moreover, the Applicant recently on 18 November 2025 in writing requested to withdraw her application as her problems in her home country have been resolved that she now wants to return to Indonesia.

16.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 27^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