Case Document

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HCAL 618/2025

[2026] HKCFI 4473

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 618 OF 2025

BETWEEN

	Harnianti	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 30-year-old national of Indonesia who arrived in Hong Kong on 12 January 2023 with permission to work as a foreign domestic helper until the expiration of her employment contract 12 January 2025 or within 14 days of its early termination, but when her employment was prematurely terminated on 31 January 2023, she did not depart and instead overstayed, and was arrested by police on 10 May 2023, and was subsequently sent to prison for 12 months, during which she raised a non‑refoulement claim for protection to the Immigration Department on the basis that if she returned to Indonesia she would be harmed or killed by her family and/or the family of her girlfriend and/or the villagers in her home village over her sexual orientation as a lesbian as not acceptable to the Muslim community. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Bengkaung, West Lombok Regency, West Nusa Tenggara Province, Indonesia. While in secondary school she discovered her sexual orientation of being attracted to the same sex and started secretly dating a fellow female student in her school.

3.In 2018 she met and dated another girl Sindy whose father was the head of her home village, and one day in July 2019 after their relationship was discovered by Sindy’s father who then insisted that the Applicant stopped seeing his daughter and threatened to kick her out of the village, and after her parents had learnt about her sexual orientation, they were also furious and disowned her from the family.

4.As a result the Applicant fled to Malang City with the intention to leave the country by applying to work in Hong Kong as a foreign domestic helper, which she subsequently did in January 2023 after the Covid-19 pandemic to arrive in Hong Kong to start her employment, but after her employment was prematurely terminated in February 2023, 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 14 December 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 18 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”).

6.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 family or the family of her girlfriend or those villagers in her home village upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from any of them, that there is no evidence of any real intention of any of them to seriously harm or kill her other than just angry words and empty threats, that in any event it was a private personal dispute between 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”) show that there is no law against same sex conducts or activities in Indonesia where the LGBT communities do enjoy protection safety and belongings, while reasonable internal relocation alternatives are also 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 young 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 anyone to locate her.

7.On 29 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 22 April 2024 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 13 August 2024 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision[1] the Board accepted the Applicant’s claim of fear of harm from her family and that of her girlfriend due to her sexual orientation as a lesbian but found no reliable evidence of any real intention of either of them to seriously harm or kill her other than angry words and empty threats, nor is there any evidence of any threats from her neighbours or fellow villagers from her home village, and that in any event it was a private and personal dispute between them only without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia given that relevant COI show that LGBT communities are able to enjoy protection safety and belonging in Indonesia amongst a conservative Muslim population, as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home village without any risk of being located by anyone that her claim for non‑refoulement protection failed on all applicable grounds.

9.On 12 March 2025 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 cited some legal principles applicable to non-refoulement claims and asserted that the Adjudicator failed to give her a “true decision” but without providing any details or particulars or elaboration as to how it did so.

10.By then the Applicant was also out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

11.As the last day of the three-month period for her to file her Form 86 fell on 13 December 2024 after discounting the month of August 2024 for court’s vacation, the Applicant was therefore some 3 months late with her application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

12.In the Applicant’s case, a delay of 3 months must be considered as substantial and inordinate, for which she did not provide any explanation or reasons in her Form or affirmation, and as the record shows that the decision was sent on the same day of 13 August 2024 to the Applicant’s then reported address without being returned through undelivered post, I am unable to see any good or valid reason for her such serious delay.

13.As for the merits, if any, of her intended application, as noted above that the Applicant has also failed to put forward any proper ground for her intended challenge. 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 merits in her intended application either.

14.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.

15.In the Applicant’s case, the Board rejected her claim 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 of 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.

16.Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s 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.

17.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.

18.Moreover, the Applicant has recently on 29 June 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.

19.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 14^th day of August 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 14 August 2026 Harnianti 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 14 August 2026 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 22882 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1527/23 (formerly RBCZ 5001540/23) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)