Case Document

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HCAL 904/2024

[2026] HKCFI 4988

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 904 OF 2024

BETWEEN

	Murtini	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:

1. Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 5 December 2023 be refused; and

2. The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The Applicant is a 40-year-old national of Indonesia who arrived in Hong Kong on 2 April 2021 with permission to work as a foreign domestic helper until the expiration of her employment contract on 2 April 2023 or within 14 days of its early termination, but when her employment was prematurely terminated on 27 November 2021, she did not depart and instead overstayed, and was arrested by police more than one year later on 25 December 2022. 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 disputes and/or her creditor for failing to repay her debts.

2.The Applicant was born and raised in Village Bubulan, Bojonegoro Regency, East Java, Indonesia. After leaving school she married her husband and raised a family with 2 children in her home district.

3.Due to his own limited income as a construction worker, her husband in 2018 demanded the Applicant to work in Taiwan as a domestic servant and to remit money to him in Indonesia for the support of their family as well as to save up their money for building their future home, which she did until 2020 when she completed her employment and returned to her home in Indonesia.

4.However, the Applicant soon discovered that her husband had instead spent most of her remittances on gambling, and when confronted by the Applicant, her husband became furious and beat her severely.

5.As a result, and in order to proceed with their plan to build the house, the Applicant therefore borrowed a loan from some local money-lender to be repaid by her coming to Hong Kong to work as a foreign domestic helper and to remit money to her creditor for her loan repayment by monthly instalments.

6.Accordingly the Applicant arrived in Hong Kong in April 2021 to start her employment, but it was prematurely terminated in November 2021 that she was unable to remit any money to Indonesia, whereupon both her husband and creditor made threats against 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 19 January 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 8 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”).

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 husband or her creditor upon her return to Indonesia as low due to the low intensity and frequency of past ill‑treatment from either of them, 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 or from her creditor other than just to press her to repay her debts, that in any event these were private marital or monetary disputes 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”) 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 Surabaya where it would be difficult if not impossible for anyone to locate her.

9.On 15 February 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 26 July 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 5 December 2023 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 and rejected the credibility of her claim of fear of harm from her husband or her creditor 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 more than one year later and only after she was arrested by police, and that in any event there was 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 his present whereabouts is not known since they have no further contact for several years already that any fear of harm from him is just the Applicant’s own speculations, and similarly there is no reliable evidence of any real intention of her creditor to harm or kill her other than just to press her to repay her debts that the Board concluded that the Applicant will not face any real risk of harm or ill-treatments from her husband or creditor upon her return to Indonesia that her claim for non-refoulement protection failed on all applicable grounds.

11.On 6 June 2024 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 of her fear of harm from her husband and her creditor but without putting forth any proper ground for her intended challenge.

12.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.

13.As the last day of the three-month period for her to file her Form 86 fell on 5 March 2024, 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.

14.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 5 December 2023 to her then reported address without being returned through undelivered post, I am unable to see any good or valid reason for her such serious delay.

15.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, 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.

16.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.

17.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 of her claim, and in the absence of any error of law or procedural unfairness in its 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.

18.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 are localized ones and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, a decision also agreed 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.

19.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.

20.Moreover, the Applicant has recently on 3 August 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.

21.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 3^rd day of September 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 3 September 2026 Murtini 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 3 September 2026 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 21493 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 76/23 (Formerly RBCZ 5000013/23) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)