Case Document

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HCAL 998/2023

[2026] HKCFI 5630

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 998 OF 2023

BETWEEN

	Sulastri	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 the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 47-year-old national of Indonesia who arrived in Hong Kong in 2007 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 in late 2010, she did not depart and instead overstayed, and was arrested by police almost 10 years later in 2020, and for which she was subsequently convicted and sentenced to prison for 8 months. After she was discharged from prison and 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 former brother-in-law over their personal dispute in her home district. She was subsequently released on recognizance pending the determination of her claim.

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

3.Throughout their marriage her husband’s parents treated her differently, and while her father-in-law fully supported her, her mother-in-law somehow disliked her and treated her badly, and which unfortunately often led to heated arguments between her 2 in-laws over their different treatment of her.

4.One day in January 2007 her mother-in-law committed suicide after another huge argument with her father-in-law, but for which her brother-in-law blamed the Applicant and assaulted her, and it was through the intervention of her father-in-law that she managed to make her escape, and together with her husband they fled to Jakarta to take shelter in a friend’s place.

5.In order to make her living and to stay away from her brother-in-law, the Applicant later in the same year of 2007 left the country to come to Hong Kong to work as a foreign domestic helper

6.However, after her last employment was prematurely terminated in late 2010, the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police some 10 years later in 2020, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 3 January 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 11 March 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 of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that she would be harmed or killed by her former brother-in-law 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 former brother-in-law to seriously harm or kill her other than just angry words and empty threats, nor is it accepted that her former brother-in-law would still be any adverse interest in her after all these years since the death of her mother-in-law in 2007 and no further contact between them since, that in any event it was a private personal dispute between her and her former brother-in-law 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 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 Bali or Medan where it would be difficult if not impossible for anyone to locate her.

9.On 16 March 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 11 January 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 7 June 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision[1], the Board accepted the Applicant’s claim of fear of harm from her former brother-in-law that caused her to overstay in Hong Kong to seek protection but found no reliable evidence of any real intention of her former brother-in-law to seriously harm or kill her other than just angry words and empty threats over her mother-in-law’s suicide that occurred years ago in 2007 that it is not accepted that there would still be any adverse interest in her after all these years, and that in any event it was a private and personal dispute between just her and her former brother-in-law only without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia if resorted to 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 anyone that her claim for non-refoulement protection failed on all applicable grounds.

11.On 21 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, nor did she attend the scheduled hearing of her application without any explanation. 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.

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.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.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, I therefore refuse to grant leave and accordingly dismiss her application.

Dated the 8^th day of October 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 the Applicant’s 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 Sulastri 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 20049 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 15/22 (formerly RBCZ 5000100/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)