Case Document

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HCAL 1551/2024

[2026] HKCFI 5457

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1551 OF 2024

BETWEEN

	Susyanti Desi	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 34-year-old national of Indonesia who arrived in Hong Kong on 7 November 2019 with permission to work as a foreign domestic helper until the expiration of her employment contract on 7 November 2021 or within 14 days of its early termination, but when her employment was prematurely terminated on 6 November 2020, she did not depart and instead overstayed, and was arrested by police on 17 December 2020. 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 who disapproved of her religious conversion from Islam to Christianity. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised as a Muslim in Village Cikijing, Sub-district Cikijing, District Majalengka, West Java Province, Indonesia when her biological father passed away even before she was born and her mother subsequently married her step-father who had however sexually abused her when she was small which caused her great fear and distress.

3.After leaving school and in order to stay away from her step-father, the Applicant went to Jakarta to work as a domestic helper, during which she befriended some Christians, and under their influence she in 2018 converted her religion to Christianity, but of which she did not inform her parents of this for fear that they would disapprove of it and that her step-father may even harm or kill her.

4.In November 2019 she started coming to Hong Kong to work as a foreign domestic helper, but when her employment was prematurely terminated in November 2020, 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 3 August 2021 and attended a screening interview before the Immigration Department with legal representation.

5.By a Notice of Decision dated 19 October 2021, 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 the 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”).

6.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her step-father 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 knowledge of her step-father about her religious conversion let alone to form any intention to harm or kill her other than her own speculations, that in any event it would be a private religious dispute between just the 2 of them and within their family 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 Bali where it would be difficult if not impossible for her step-father to locate her.

7.On 27 October 2021 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 15 July 2024 before the Board during which she gave evidence and answered questions raised about her claim as stated in her NCF by the Adjudicator for the Board but also raised a new claim of being a lesbian and for which she also feared being harmed or killed by her step-father. On 21 August 2024 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision[1], the Board found material inconsistencies and discrepancies and total lack of relevant or necessary supporting information provided in the Applicant’s evidence about her alleged conversion of her religion from Islam to Christianity without any knowledge or information on her part about the religion that it was convinced that she just fabricated the whole matter for the purpose of her claim for non-refoulement protection, while her additional claim of fear of being harmed by her step-father due to her alleged sexual orientation as a lesbian was equally suspicious and unreliable given that she never raised it in her claim in her NCF or before the Director despite being legally represented at that stage, and that even if she were indeed a lesbian as claimed that there is no evidence or basis for her to have any fear from her step-father with whom even on her own admission that she had ceased all contact since 2013 and that in the absence of any evidence of any knowledge that her mother or step-father might have about her sexual orientation in the past let alone any indication of any reaction from them of her alleged sexual orientation that the Board similarly rejected such claim as speculative and unsubstantiated, and concluded that her claim for non-refoulement protection on either basis failed on all applicable grounds.

9.On 10 September 2024 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 and just directly dismissed it without taking any time to think about her life;

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

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

10.These are however all just some bare and bald assertions of the Applicant without any relevant or necessary details or particulars 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 unfairly or irrational, or how did the Adjudicator fail to take into account relevant COI or been selective or improperly relied on irrelevant COI, or what supporting documents that the Adjudicator had refused to allow her to submit without translations when the record shows no such issue ever raised by the Applicant during her hearing before the Board, or in what way the interpreter was impatient or unhelpful to her 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.

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 her 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 essentially on its adverse finding on her credibility 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 about her claims, 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 even if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other parts 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.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 24 August 2026 in writing requested to withdraw her application as her problems in her home country have been resolved and she now wants to return to Indonesia as soon as possible.

16.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 problem for her to return to her home country, I accordingly dismiss her leave application.

Dated the 8^th day of October 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 8 October 2026 Susyanti Desi 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 8 October 2026 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 19049 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1267/21 (formerly as RBCZ 10458/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)