Sunarma Rukmana Bt Supri Fatau v. Torture Claims Appeal Board

HCAL 1578/2022

[2026] HKCFI 1522

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1578 OF 2022

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 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 arrived in Hong Kong on 14 September 2018 with permission 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 17 March 2021, she did not depart and instead overstayed, and was arrested by police on 19 June 2021. 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’s creditors over her husband’s debts. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Pulau Sumbawa, West Nusa Tenggara, Indonesia. After leaving school she worked as a domestic servant in Saudi Arabia and Singapore before returning to Indonesia in 2015 to marry her husband and raised a family with a son in her home district.

3.In 2018, she returned to work to help support the family by coming to Hong Kong to work as a foreign domestic helper, however in 2020 she learnt that her husband had used her name to borrow money from some local money-lenders but for which he subsequently failed to repay and had gone into hiding, and when his creditors were unable to find him, they then came to her home looking for the Applicant with threats to kill her when she returned to Indonesia for failing to repay her husband’s debts, and so after her last employment was prematurely terminated in March 2021, the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 20 January 2022 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any screening interview before an immigration officer due to alleged medical issue.

4.By a Notice of Decision dated 27 May 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”).

5.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’s creditors upon her return to Indonesia as low 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 those creditors to seriously harm or kill her other than to press her to repay her husband’s debts, that in any event these were private monetary disputes between her husband and his creditors 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 270 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’s creditors to locate her.

6.The Applicant never brought any appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision under Section 37ZS (1) of the Immigration Ordinance, and instead on 29 December 2022 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 to which she just attached a copy of the Director’s decision but without any explanation as to why she had not first appealed to the Board against that decision, nor did she subsequently attend the scheduled hearing of her application without any explanation.

7.The right to challenge a decision of the Director in rejecting a non-refoulement claim by way of an appeal to the Board is provided under Section 37ZR of the Immigration Ordinance as follows:

“Appeal

A person aggrieved by a decision of an immigration officer may appeal to the Appeal Board if the decision is made in respect of the person under –

(a) section 37ZE(4) or 37ZG(5) (decision not to re-open a torture claim);

(b) section 37ZI(1)(b) (decision rejecting a torture claim); or

(c) section 37ZL(1) (revocation decision made by an immigration officer).”

8.In the present case, the Director’s decision was sent on the same day of 27 May 2022 to the Applicant’s then reported address without being returned through undelivered post, and despite having been advised in para 40 of that decision that if she felt aggrieved by the decision that she may appeal to the Board within 14 days of its receipt, the Applicant somehow never did so as subsequently confirmed by a letter dated 16 October 2025 from the Board of no record of any appeal ever lodged by the Applicant against the Director’s decision under Section 37ZI(1)(b) of the Ordinance.

9.It is clear from the Immigration Ordinance that there is a two-tier administrative structure for the process and screening of non-refoulement claims under the Unified Screening Mechanism (“USM”) in place since 2014, with the first-tier screening process by an immigration officer on behalf of the Director, and the second-tier by a qualified member of the Board, and hence a non-refoulement claimant not satisfied with the Director’s decision may then appeal to the Board and undergo the second-tier screening process before an adjudicator, and only after a decision by the Board in rejecting the claim and confirming the Director’s decision that the claimant may seek leave from the Court to apply for judicial review of the Board’s decision.

10.As such, and in the absence of any such appeal by the Applicant to the Board against the Director’s decision or to undergo the second-tier screening process before the Board, there is simply no legal basis for her in her present application to seek leave to apply for judicial review of the Director’s decision.

11.In the premises, and for the given reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I accordingly dismiss her leave application.

Dated the 13^th day of March 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