Sari Cindy Kurnia v. Torture Claims Appeal Board

HCAL 524/2023

[2026] HKCFI 2484

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 524 OF 2023

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 35-year-old national of Indonesia who arrived in Hong Kong on 25 November 2019 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 9 December 2021, she did not depart and instead overstayed, and was arrested by police on 15 January 2022.  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 step-father for rejecting his sexual advances.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Desa Karangampel Kidul, Sub-district Karangampel, Indramayu Regency, West Java, Indonesia where her mother re-married her step-father after divorcing her father when she was a child.  After leaving school she married her husband and raised a family with a daughter in her husband’s home in the same district.

3.After her own marriage subsequently also ended in a divorce, the Applicant returned to her mother’s home with her daughter, and in 2014 went to Singapore to work as a domestic helper to support her daughter.

4.In 2019 she returned to her mother’s home in Indonesia, during which her step-father attempted on 3 occasions to sexually abuse her but on each occasion she managed to put up strong resistance against his advances, and on the last occasion her step-father became furious and threatened to kill her if she continued to resist his advances.  

5.As a result the Applicant became fearful for her life and moved to Jakarta where she applied to work in Hong Kong as a foreign domestic helper, which she eventually did on 25 November 2019 when she arrived in Hong Kong to start her first employment, but when her last employment contract was prematurely terminated on 9 December 2021, 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 21 April 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

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

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 her claimed future risk of harm by her step-father 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 step-father to seriously harm or kill her other than just angry words and empty threats, that in any event it was a private 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 275 million people spread across a vast territory 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 Medan where it would be difficult if not impossible for her step-father to locate her.

8.On 27 May 2022 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which she failed to attend the scheduled oral hearing on 21 February 2023, and in the absence of any reply or response from her to the Board’s subsequent enquiry for her absence or any request from her for any further hearing, the Board proceeded to deal with her appeal on paper based on all the materials and information submitted earlier by her to the Director and available in the hearing bundle before the Board. On 17 March 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision[1] the Board found no reliable evidence of any real intention of her step‑father to seriously harm or kill her for rejecting his sexual advances other than just angry words and empty threats, and that in any event it was a private dispute between just the 2 of 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 her step-father that her claim for non-refoulement protection failed on all applicable grounds.    

10.On 3 April 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1)   That the Adjudicator did not consider her claim properly and just directly dismissed it without even taking time to consider her life;

(2)   That the Adjudicator unreasonably refused to allow her to submit her supporting documents without translation and also failed to give her time to arrange for their translations;

(3)   That the interpreter was impatient and unhelpful to her during the appeal hearing.       

11.These are however all just bare and vague assertions of the Applicant without any necessary or relevant particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or what documents that the Applicant had wanted to submit without translations or in what way was the interpreter impatient or unhelpful to her during the hearing when in fact the Applicant as noted above never attended any hearing before the Board at all and hence her such complaints are simply unsustainable.  As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

12.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.

13.In the Applicant’s case, the fact is that it has been 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.                

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.Moreover, the Applicant has recently on 12 March 2026 in writing requested to withdraw her application as her issues in her home country have been resolved that she now wants to return to Indonesia.

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, and in view of her latest confirmation of no more issue for her to return to her home country, I accordingly dismiss her leave application.

Dated the 5^th day of May 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