Case Document

100%

HCAL 2243/2023

[2026] HKCFI 5319

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2243 OF 2023

BETWEEN

	Maya	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 45-year-old national of Indonesia who last arrived in Hong Kong on 24 August 2019 with permission to continue to work as a foreign domestic helper until the expiration of the employment contract or within 14 days of its early termination, but when her employment was prematurely terminated on 28 August 2019, she did not depart and instead overstayed, and was arrested by police almost one year later on 8 July 2020. 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 father’s creditor over his unpaid debts and/or her fellow Muslim villagers in her home village and/or the family of her former girlfriend over her sexual orientation as a lesbian. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in a Muslim family in Lasusua, Sulawesi Selatan, Indonesia where her father used to run a sheep farm on loans from some local money-lender, but as he was getting old and was not making enough profit to enable him to repay his debts, the Applicant had seen the money-lender come with men to their home demanding her father to repay his debts with threats to harm him or to sell the Applicant into prostitution, which caused the Applicant great fear for her own safety.

3.After leaving school she went to Singapore to work as a domestic servant before coming to Hong Kong in 2015 to work as a foreign domestic helper, during which her father passed away without repaying all his debts, whereupon his creditor would come to her home in Indonesia looking for her and with demands for her to repay her father’s debts, and so the Applicant would try to remit whatever she could spare from Hong Kong to her family in Indonesia to help repay some of her father’s debts.

4.In 2017 she returned to her home in Indonesia in between jobs, and started dating a girl from her home village which later developed into a lesbian relationship, but which was disapproved by both the family of her girlfriend as well as some of the Muslim villagers, and after one occasion when the Applicant was attacked by some family members of her girlfriend and became fearful for her life that she fled to Jakarta before eventually returning to Hong Kong to continue with her employment as a foreign domestic helper.

5.However, after her last employment was prematurely terminated in August 2019, 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 27 April 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 24 June 2021 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”).

7.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 father’s creditor and/or her fellow villagers and/or her former girlfriend’s family upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatments from 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 these were private 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”) show that reasonable internal relocation alternatives are available in Indonesia with a large population of 260 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 anyone to locate her.

8.On 6 July 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which she failed to attend the scheduled oral hearing before the Board without any explanation or response to the Board’s subsequent enquiry for her non-attendance, nor did she request another oral hearing for her appeal, whereupon the Board proceeded to deal with her appeal in her absence and on paper based on the material and information previously submitted by her to the Director and available in the hearing bundle before the Board. On 27 November 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.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 any creditor of her father or her fellow villagers or the family of her former girlfriend that caused her to overstay in Hong Kong to seek protection, that her credibility was further undermined by her failure to raise her claim until almost one year after her overstaying in Hong Kong and only after her arrest by the police, that even if her accounts of events in Indonesia were true that there was no reliable evidence of any real intention of any of those persons to seriously harm or kill her other than just angry words and empty threats, and that in any event these were all private and personal disputes 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 without any risk of being located by anyone that her claim for non-refoulement protection failed on all applicable grounds.

10.On 14 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)  That the Adjudicator did not consider her claim and just directly dismissed it without 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 failed to give her time to arrange for their translations;

(3)  That the interpreter was impatient and unhelpful to her during her hearing before the Board.

11.These are however just 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, or what documents that the Adjudicator had refused to allow her to submit during her hearing before the Board when the record shows no such evidence, or in what way was the interpreter impatient or unhelpful to her during the hearing. 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.

12.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.

13.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 risks of harm in her claim even if real are all localized ones 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.

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 27 July 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.

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 no more issue for her to return to her home country, I accordingly dismiss her leave application.

Dated the 22^nd day of September 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 22 September 2026 Maya 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 22 September 2026 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 18227 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 459/21 (formerly RBCZ 10417/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)