ENTIN SUMIATIN v. TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

HCAL 1340/2023 [2026] HKCFI 1859 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1340 OF 2023 BETWEEN Entin Sumiatin Applicant and Torture Claims Appeal Board and Putative Respondent 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: The Applicant is a 39-year-old national of Indonesia who last arrived in Hong Kong on 19 March 2021 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 19 March 2023 or within 14 days of its early termination, but when her employment was prematurely terminated on 19 January 2022, she did not depart and instead overstayed upon the expiration of her visa as extended up to 17 June 2022, and was arrested by police on 21 October 2022. After she was referred to the Immigration Department for investigation, she raised a nonrefoulement claim for protection on the basis that if she returned to Indonesia she would be harmed or killed by her husband for bringing shame to him and the family. She was subsequently released on recognizance pending the determination of her claim. The Applicant was born and raised in Dusun Jejerukan, RT 03, RW 01, Desa Rancahilir, Kecamatan, Pamanukan, Subang, Indonesia. After leaving school she married her husband and raised a family with a son in her home district. In 2004 she separated with her husband, and to support her son the Applicant left her son in the care of her elder sister in her home district, and went to work as a domestic helper in Saudi Arabia and Singapore before coming to Hong Kong in 2019 as a foreign domestic helper. One day in February 2022 while working in Hong Kong, the Applicant was sexually abused by a Pakistani man, and of which she reported to the police, and as she was busy assisting in the police investigation and was unable to focus on her job, it led to her employment being prematurely terminated shortly thereafter, but when she informed her sister of her sexual abuse incident, her sister however reacted angrily towards her for bringing shame to the family, and later when she was told by her sister that her husband was also furious with her and threatened to kill her when she returned home, 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 29 December 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). By a Notice of Decision dated 21 February 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 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”). In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her husband 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 or to have any adverse interest in her after all these years since their separation in 2004, that in any event it was a private domestic dispute between her and her husband 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 270 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 where it would be difficult if not impossible for her husband to locate her. On 6 March 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 14 June 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 31 July 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision. In its decision the Board found no reliable evidence of any real intention of her husband to seriously harm or kill her other than some angry words and empty threats uttered on the phone to the Applicant’s sister only, nor is there any reason for him to still have any adverse interest in the Applicant after all these years since their separation in 2004, and that in any event it was a private domestic 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 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 her husband that her claim for nonrefoulement protection failed on all applicable grounds. On 3 August 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 Adjudicator did not consider her claim and just dismissed it without even 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 refused to give her time to arrange for their translation; (3) That the interpreter was unhelpful and impatient with her during her appeal hearing before the Board. These are however just bare and vague assertions of the Applicant without any necessary or relevant 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 how did the Adjudicator fail to allow her to submit her supporting documents or refuse to give her time to arrange for their translation, or in what way was the interpreter unhelpful or impatient with 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. 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. 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. In the premises, and 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. Moreover, the Applicant has recently 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. 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 issues for her to return to her home country, I accordingly dismiss her leave application. Dated the 30th day of March 2026. (Klein Tse) 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 30 March 2026 Entin Sumiatin 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 30 March 2026 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 21541 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1270/22 (formerly RBCZ 5001145/22) [T1S110] Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) ____________________________________________________________________________ Form CALL-1