Case Document

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HCAL 2021/2023

[2026] HKCFI 5479

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2021 OF 2023

BETWEEN

	Fitri Puji Lestari	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 31-year-old national of Indonesia who last arrived in Hong Kong on 19 December 2018 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 19 December 2020 or within 14 days of its early termination, but when her employment was prematurely terminated on 20 March 2020 she did not depart and instead overstayed, and was arrested by police more than 1 year later on 12 December 2021. 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. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in DKH. Kroyo, DS Gelangkulon, Kec Sukorejo, Kab Ponorogo, Jawa Timur, Indonesia. After leaving school she worked as a domestic servant to make her living, later married her husband and made their home in her home district.

3.Due to her husband’s limited income and to help support their family, the Applicant in June 2017 started coming to Hong Kong to work as a foreign domestic helper, during which she met and started an affair with another man in Hong Kong, and when it was later discovered by her husband who then became furious and made threatening phone calls to her that he would kill her when she returned to Indonesia.

4.As a result the Applicant became fearful for her life, and so after her last employment was prematurely terminated in March 2020, 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 17 January 2022 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 May 2022 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 his 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 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 other than just angry words and empty threats, that in any event it was a private domestic or marital dispute between just the 2 of 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 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 or Bali where it would be difficult if not impossible for her husband to locate her.

7.On 26 May 2022 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 6 March 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 3 November 2023 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 being harmed by her husband over their marital disputes but found 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 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 upon her return to 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 husband that her claim for non-refoulement protection failed on all applicable grounds.

9.On 13 November 2023 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, and in her supporting affirmation of the same date she just made bare and bald assertions that the Adjudicator did not listen to her and that she was just given the hearing bundle shortly before her appeal hearing but without providing any relevant or necessary details no particulars or elaboration in support of her such assertions, while the record shows no such issues being raised by her during her hearing to the Board which as noted in its decision also accepted her case as claimed of fear of harm from her husband over their marital or domestic disputes without any official involvement, and correctly found from relevant COI that both state protection and reasonable internal relocation alternatives would be available to the Applicant upon her return to Indonesia to negate whatever risk of harm that may arise from her disputes with her husband, 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 reasonably arguable basis for her intended challenge of the Board’s decision.

10.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.

11.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.

12.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.

13.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, I therefore refuse to grant leave and accordingly dismiss her application.

Dated the 29^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 29 September 2026 Fitri Puji Lestari 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 29 September 2026 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 20339 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 52/22 (formerly RBCZ/5000481/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)