Case Document

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HCAL 790/2024

[2026] HKCFI 5982

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 790 OF 2024

BETWEEN

	Naslam Warsinih Bt Duslan	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 44-year-old national of Indonesia who arrived in Hong Kong on 22 August 2019 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 on 24 February 2023, she did not depart and instead overstayed, and was arrested by police more than 6 months later on 4 September 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 husband over their domestic dispute. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Village Rancamulya, Gabus Wetan District, Indramayu, West Java, Indonesia. After leaving school she worked as a domestic helper to make her living, then married her first husband Sukjad and raised their son in her home district.

3.However, Sukjad subsequently left to work in Jakarta but failed to provide any maintenance for the family, and so the Applicant in 2007 went to Jordan to work as a domestic helper to support their son.

4.In 2008 Sukjad suddenly returned to take their son away, which subsequently led the Applicant to divorce him, and in 2010 she then went to Taiwan to work as a domestic helper to make her own living.

5.In 2015 she met and married her present husband Said and subsequently gave birth to their 2 children, but in 2018 Said became unemployed and began to vent his anger and frustration on the Applicant by beating her at will, and to support the family the Applicant in 2019 started coming to Hong Kong to work as a foreign domestic helper by remitting money every month to Said in Indonesia for the support of their family.

6.However, after her last employment was prematurely terminated in February 2023 and when she was unable to remit any money to Indonesia, Said then became furious and threatened to kill her, and so 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 28 November 2023 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 4 January 2024 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 assessed the level of risk of harm from her present husband Said over their domestic or marital disputes 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 real intention of her husband to seriously harm or kill her other than just angry words and empty threats, that in any event it was a private marital dispute between just the 2 of 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 279 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 Semarang or Surabaya where it would be difficult if not impossible for her husband to locate her.

9.On 15 January 2024 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 April 2024 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 14 May 2024 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her husband over their marital disputes 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 first overstaying in Hong Kong until some 6 months later and only after her arrest by the police, that even if her claimed threats from her husband Said were true that there is no reliable evidence of any real intention of her husband to seriously harm or kill her other than just angry words and empty threats, and that in any event it was a private domestic or marital dispute between just the 2 of them 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 in large cities without any risk of being located by her husband that her claim for non-refoulement protection failed on all applicable grounds.

11.On 20 May 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 Board did not truly consider her claim and just dismissed it with bad arguments;

(2)  That the Adjudicator was not neutral and was ready to dismiss her claim even before the start of her appeal hearing;

(3)  That her lawyer was not helpful and was just sleeping at the hearing.

12.These are however all 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 unfair or irrational. 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 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.

14.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 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.

15.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.

16.Moreover, the Applicant has recently on 7 October 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.

17.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 29^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 29 October 2026 Naslam Warsinih Bt Duslan 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 29 October 2026 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 22787 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1424/23 (formerly RBCZ/5001405/23) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)