Sundari v. Torture Claims Appeal Board

HCAL 1127/2024

[2026] HKCFI 2318

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1127 OF 2024

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 11 June 2019 with permission to continue 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, she did not depart and instead overstayed, and was arrested by police on 20 September 2023.  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 former 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 Dukuh Jati, DS Ngrogung, Kec. Ngebel, Kab. Ponorogo, East Java, Indonesia.  After leaving school she married her husband and raised a family with a son in her home district.

3.Her marriage however later ended in a divorce, and in order to support her son she in 2008 went to work in Brunei as a domestic helper, and in 2014 she borrowed a loan from her former husband to pay for her father’s medical and hospital expenses, and for which she intended to repay her husband by instalments, but in 2015 when she returned to Indonesia, her former husband demanded that she repaid the entire loan, and when she was unable to do so, he became furious and beat her violently.

4.As a result, and in order to earn more money to repay her former husband, the Applicant in 2017 started coming to Hong Kong to work as a foreign domestic helper, during which she managed to repay part of the loan to her husband.

5.However, after her last employment was prematurely terminated on 27 May 2023, the Applicant was unable to repay the balance of the loan to her former husband who then became furious and threatened on the phone to kill her upon her return, and so she 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 22 November 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.By a Notice of Decision dated 15 December 2023 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 former 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 former husband to seriously harm or kill her other than to press her to repay the balance of her debts, that in any event it was a private monetary 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 279 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 former husband to locate her.

8.On 21 December 2023 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 22 March 2024 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 9 July 2024 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 dispute with her former husband over her outstanding debts due to him but found no reliable evidence of any real intention of her former husband to seriously harm or kill her other than just angry words and empty threats to press her to repay her debts to him, and that in any event it was a private monetary dispute between just the 2 of them only without any official involvement that it agreed with the Director’s findings 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 her former husband that her claim for non-refoulement protection failed on all applicable grounds.    

10.On 15 July 2024 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 repeated her claim as before 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 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 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.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 also of note that the Applicant has recently filed an affirmation requesting to “cancel” her application but without providing any explanation or reasons for her request or what happens to her claimed risk in her home country.

16.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, I therefore refuse to grant leave and accordingly dismiss her application.

Dated the 24^th day of April 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