Case Document

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HCAL 161/2023

[2026] HKCFI 4672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 161 OF 2023

BETWEEN

	Karsiyah	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 49-year-old national of Indonesia who last arrived in Hong Kong on 30 November 2017 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 30 November 2019 or within 14 days of its early termination, but when her employment was prematurely terminated on 17 April 2019, she did not depart and instead overstayed, and was arrested by police more than 2 years later on 3 October 2021, and for which she was subsequently convicted and sentenced to prison for 6 weeks. After her discharge from prison, she was referred to the Immigration Department for deportation, 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 creditor for failing to repay her debts and/or by her husband who was furious at her over the resulting disturbances and harassments from her creditor due to her debts.

2.The Applicant was born and raised in Banyuwangi, East Java, Indonesia. After leaving school she married her husband and raised a family with 3 children in her home district.

3.To help supplement her family income, the Applicant in 2008 went to Taiwan to work as a domestic servant until 2013 when she returned to Indonesia to start a food store business to be run by her friend in Bali, and for which she borrowed a loan from a local money-lender with monthly interests payments which she planned to meet by coming to Hong Kong to work as a foreign domestic helper, which she subsequently did in 2017 to start her employment until such time when her business was starting to make a profit that upon completing her employment in Hong Kong that she could return to Indonesia to her business together with her friend.

4.However, shortly after receiving the loan money from the Applicant for the business, her friend then disappeared with the money without any news, and hence the Applicant was unable to start any business, but that she would still be burdened by the monthly repayments of her loan by remitting money from Hong Kong to her creditor in Indonesia.

5.In April 2019 her employment was prematurely terminated that she started to default in her loan repayment, her creditor then sent men to her home in Indonesia to intimidate and harass her husband and with threats to kill the Applicant if she failed to repay her loan, and as a result her husband became furious and blamed the Applicant for the mess and also threatened to kill her upon her return to Indonesia.

6.As a result, the Applicant 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 10 December 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 4 January 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”).

8.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there would be any real and substantial risk of her being harmed or killed by her creditor and/or her husband upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, while any risk of harm from her husband was just angry words and empty threats, that in any event these were just private monetary and domestic disputes between 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”) shows that reasonable internal relocation alternatives are available in Indonesia with a large population of 275 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 or Surabaya where it would be difficult if not impossible for her creditor or her husband to locate her.

9.On 17 January 2022 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 8 December 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 19 January 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision[1] the Board found material inconsistencies, discrepancies and implausibility in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from some creditor or her husband over some debts of her that caused him to overstay in Hong Kong to seek protection, that even if her account of events in Indonesia were true that there was no reliable evidence of any real intention of either her creditor or her husband to seriously harm or kill her, and that in any event these were private monetary and domestic disputes between 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 either her creditor or her husband that her claim for non-refoulement protection failed on all applicable grounds.

11.On 6 February 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 Board did not consider her claim properly and just dismissed it without any proper determination at all;

(2) That the Board unreasonably refused to accept her supporting documents without translation and also failed to give her time to arrange for their translations.

12.These are however just some bald and vague assertions of the Applicant without any relevant or necessary 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 Board had refused to allow her to submit without translation or to give her time to arrange for their translations when the record shows no such request ever made by the Applicant during her appeal hearing before the Board. 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.

13.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.

14.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 as well as relevant COI of situations in Indonesia, 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.

15.Furthermore, the fact is that it has been established by both the Director and the Board in their respective decisions that the risks of harm in the Applicant’s claim even if real are localized ones and that it is not unreasonable or unsafe for her to relocate to other parts 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.

16.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.

17.Moreover, the Applicant has recently on 10 July 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 as soon as possible.

18.In the premises, 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 19^th day of August 2026

(Joyce Ooi)
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 19 August 2026 Karsiyah 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 19 August 2026 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 19732 Director of Immigration Putative Respondent’s ref. no.: QA T/C 2288/21 (formerly RBCZ 5000358/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)