Yuli Karwita v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2079/2023

[2026] HKCFI 3890

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2079 of 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

	consideration of documents only;            or
	consideration of documents and Applicant being present in open court;

Order by Deputy High Court Judge Andrew Li:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 13 September 2023 of the Torture Claims Appeal Board (“the Board’s Decision).

2.The applicant did not request an oral hearing.  Hence, her application will be dealt with by way of consideration of documents only.

The Applicant

3.The applicant is a national of Indonesia.  She was an illegal immigrant for the reason that she had overstayed her visa after her domestic helper service was terminated early by her employer on 14 November 2022.  She was supposed to leave Hong Kong on or before 28 November 2022 but she did not.  Thus, from 29 November 2022 onwards, she stayed in Hong Kong illegally.  She was arrested by the police on 19 April 2023. She lodged a non-refoulement claim on the basis that, if refouled, she will be harmed or killed by her husband.   

4.Details of her claim are set out in the Board’s Decision.  See hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL002079_2023_files/the_Board's_Decision.pdf

The Director’s Decision

5.The Director considered the applicant’s claim in relation to the following risks:

(1)   risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)   risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(3)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

(4)   risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.By way of the Notice of Decision dated 6 June 2023 (“Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.

The Board’s Decision

7.The applicant appealed against the Director’s Decision to the Board.

8.On 3 August 2023, the Board conducted an oral hearing for her.  She gave oral evidence and answered the Board’s questions. 

9.Having considered the evidence, the Board made the findings below.

(1)   Save from some verbal threats, there was no credible evidence to suggest that her husband had any real intention to kill or harm her.  [66, 67]

(2)   The Board found that her husband who is a farmer and who did not have any direct connection with the Indonesia government would not be able to cause the government or its officials to harm her.  [75]

(3)   The Board considered there is not a real risk that she would face any of the applicable risks if she returns to Indonesia.  [79 - 81]

(4)   The Board also considered that there is no reason why the applicant cannot relocate herself to other parts of the country like Jakarta or Bali to avoid being traced by her husband if she were to return to Indonesia. [88]

10.For the above reasons, the Board dismissed her appeal.

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant filed the Form 86 dated 21 November 2023 for leave to apply for judicial review of the Board’s Decision.

12.The applicant has not raised any specific ground to challenge the Board’s Decision.

DISCUSSION

13.The role of this court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal.  The court will not usurp the fact-finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.The court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.   

15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.The applicant has raised no valid ground to challenge the Board’s Decision. There is no evidence that shows the court should interfere with the Board’s Decision.

17.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

18.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.

Dated 14 July 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