Ipa v. Torture Claims Appeal Board

HCAL 2329/2023

[2026] HKCFI 5639

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2329 OF 2023

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 36-year-old national of Indonesia who last arrived in Hong Kong on 21 June 2019 with permission to continue 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 on 21 February 2023, she did not depart and instead overstayed, and was arrested by police on 26 June 2023. 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 mother’s creditor for failing to repay her mother’s loan. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Sukabumi, West Java, Indonesia. After leaving school she worked in various odd jobs in her home district to make her living, and in 2014 she went to Singapore to work as a domestic helper before coming to Hong Kong in 2017 to work as a foreign domestic helper.

3.In early 2022 while working in Hong Kong, she was informed by her mother in Indonesia that she had borrowed a loan from some local money-lender, and for which her mother required her to remit money to her in Indonesia every month to help her to repay her loan by monthly instalments, which the Applicant did by making monthly remittances to her mother in Indonesia.

4.However, after her last employment was terminated in February 2023 and she was therefore unable to remit money to her mother in Indonesia, and when she heard that her mother’s creditor had sent men to her home to make threats against her, 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 1 August 2023 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 4 October 2023 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 mother’s creditor upon her return to Indonesia as low due to the absence of any past ill-treatment from him, that there is no evidence of any real intention of her mother’s creditor to seriously harm or kill her other than to press her to repay her mother’s debts, that in any event it was a private monetary dispute between her mother and her creditor 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 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 or Bali where it would be difficult if not impossible for her mother’s creditor to locate her.

7.On 12 October 2023 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 6 December 2023 before the Board during which she gave evidence and answered questions raised about her claim by the Adjudicator for the Board. On 12 December 2023 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 in the Applicant’s evidence that it doubted and rejected the credibility of her claim of fear of harm from her mother’s creditor over her mother’s debts that caused her to overstay in Hong Kong to seek protection, that her credibility was further undermined by her failure to raise her claim upon her first overstaying in Hong Kong until some 3 months later and only after her arrest by the police, and that even if her account of threats from her mother’s creditor were true that there was no reliable evidence of any real intention of her mother’s creditor to seriously harm or kill her other than to press her to repay her mother’s debts that the Board concluded that her claim for non-refoulement protection failed on all applicable grounds.

9.On 27 December 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)  Procedural impropriety in its abdication of its duty to properly examine the Applicant’s claim;

(2)  Error/misdirection in law in failing to conduct an examination of the facts relation to the legal principles to exhaust all avenues when reporting public misconduct and/or corruption;

(3)  Procedural impropriety in undertaking insufficient enquiry into the COI and/or failure to appropriately examine purportedly objective COI material.

10.These are however all just some bare and bald assertions of the Applicant containing a few key words or phrases but without any relevant or necessary details or particulars or specific 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 the decision was unfair or unreasonable or the Adjudicator had acted in a procedurally unfair or irrational manner, or how the Adjudicator failed to take into account relevant COI or was selective or improperly relied on irrelevant COI. 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 claim, 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 with 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 14 September 2026 filed an Affirmation requesting to “cancel” her application as she has just been granted a dependent visa to remain in Hong Kong by the Immigration Department and has produced a copy of such permit issued by the Immigration Department.

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 withdrawing her application with good reason, I accordingly dismiss her leave application.

Dated the 13^th day of October 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