Case Document

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HCAL 2522/2024

[2026] HKCFI 5393

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2522 OF 2024

BETWEEN

	Nur Khayati	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;

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 16 August 2024 be refused; and

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

Observations for the Applicant:

1.The Applicant is a 37-year-old national of Indonesia who last arrived in Hong Kong on 23 January 2021 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 29 December 2023 or within 14 days of its early termination, but when her employment was prematurely terminated on 16 January 2023, she did not depart and instead overstayed, and was arrested by police some 12 months later on 30 January 2024. 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 former husband over their custody dispute of their son. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in DS Kutoharjo, Kec Kaliwungu, Kendal, Jawa Tengah, Indonesia. After leaving school she worked in a factory to make her living, later married her husband and raised a family with their son in her home district.

3.In 2008 she started coming to Hong Kong to work as a foreign domestic helper, and perhaps due to their lengthy separation the Applicant and her husband in 2018 obtained a divorce to dissolve their marriage and with custody of their son to the Applicant.

4.However, shortly thereafter her husband changed his mind and demanded for the custody of their son, and when the Applicant refused, he became furious and threatened to kill her.

5.As the death threats from her husband had persisted over the years, the Applicant suffered great stress and fear, and so when her last employment was prematurely terminated in January 2023, she was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police one year later, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 16 March 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 23 April 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”).

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 former husband upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her former husband to seriously harm or kill her other than just angry words and empty threats, that in any event it was a private custody dispute between just the 2 of them over the custody of their son 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 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 Jakarta or Bali where it would be difficult if not impossible for her former husband to locate her.

8.On 2 May 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 26 July 2024 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 16 August 2024 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision[1] the Board similarly found no reliable evidence of any real intention of her former husband to seriously harm or kill the Applicant over their custody dispute of their son other than just angry words and empty threats, and that in any event it was a private custody 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 without any risk of being located by her former husband that her claim for non-refoulement protection failed on all applicable grounds.

10.On 18 December 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 and asserted that she has many objections against the decision in that the Adjudicator failed to give her a true decision but without putting forth any relevant or necessary details or particulars or elaboration in support of her bald assertion, and at the hearing she asked to withdraw her application as she now wants to return to her home in Indonesia as soon as possible but failed to explain what may have happened to her claimed fear of harm from her former husband or how she would deal with it upon her return to her home country.

11.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.

12.As the last day of the three-month period for her to file her Form 86 fell on 16 November 2024, the Applicant was therefore some 4 weeks 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.

13.In the Applicant’s case, a delay of 4 weeks must be considered as substantial and inordinate, for which she did not provide any explanation or reasons in her Form or affirmation, nor was she able to do so at the hearing of her application as she just wanted to withdraw her application, and as such I am unable to see any good or valid reason for her such substantial delay.

14.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, nor was she able to do so at the hearing of her application, 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.

15.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.

16.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 even 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.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.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 the absence of any good reason for her serious delay, I refuse to extend time and accordingly dismiss her leave application.

Dated the 24^th 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 24 September 2026 Nur Khayati 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 24 September 2026 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 23543 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 559/24 (Formerly RBCZ 5000580/24) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)