Case Document

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HCAL 982/2023

[2026] HKCFI 2894

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 982 OF 2023

BETWEEN
	Wahyuni Sri	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 oral submissions by the Applicant in open court / 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 24 July 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 upon the completion of her last employment on 20 May 2022 she did not depart and instead overstayed, and was arrested by police on 23 May 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 husband over their domestic or marital disputes. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Madiun, Jawa Timur, Indonesia. After leaving school she married her husband and moved to his home district in Dsn Rambutan, Ds Kawe Dusan, Ponggo, Blitar.

3.Due to her husband’s limited income they often had quarrels over money issues throughout their marriage during which her husband would be violent towards her by beating her with fists and kicks.

4.In 2014 the Applicant went to work in Singapore as a domestic helper before coming to Hong Kong in 2019 to work as a foreign domestic helper, whereupon her husband moved into her parents’ home during which he frequently demanded the Applicant to sell the house, and when she refused, he then became furious and threatened to harm or kill her with witchcraft and black magic before leaving her parents’ home shortly thereafter and without further contact with the Applicant.

5.Nevertheless the Applicant was still fearful for her life, and after her last employment was completed on 20 May 2022, 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 5 July 2022 and attended screening interview before the Immigration Department with legal representation.

6.By a Notice of Decision dated 24 August 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 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 and with whom she has no further contact since 2019, that there is no evidence of any real intention of her husband to seriously harm or kill her other than just 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 277 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.On 13 September 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 9 February 2023 before the Board without any explanation, nor did she subsequently request another oral hearing for her appeal that the Board proceeded to deal with her appeal in her absence and on paper based on the materials and information earlier submitted by her to the Director and available in the hearing bundle before the Board. On 4 May 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 husband to seriously harm or kill her other than just angry words and empty threats and only in 2019 and with no further contact thereafter, that it is not accepted that she could be harmed in anyway by her husband’s witchcraft or black magic as alleged, and that in any event it was a private domestic or marital 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 husband that her claim for non-refoulement protection failed on all applicable grounds.

10.On 20 June 2023 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 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.

13.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.

14.Moreover, the Applicant has recently on 25 March 2026 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.

15.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 22^nd day of May 2026

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 22 May 2026 Wahyuni Sri Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 22 May 2026 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 20935 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 648/22 (formerly RBCZ 5000496/22) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)