Case Document

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HCAL 969/2023

[2026] HKCFI 5628

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 969 OF 2023

BETWEEN

	Banowati	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 29-year-old national of Indonesia who arrived in Hong Kong on 28 November 2020 with permission to work as a foreign domestic helper until the expiration of her employment contract on 28 November 2022 or within 14 days of its early termination, but when her employment was prematurely terminated on 19 March 2022 she did not depart and instead overstayed, and was arrested by police on 15 June 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. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Dusun, Cibeureum, Desa Tanjungmulya, Kec Panumbangan, Ciamis, Jawa Barat, Indonesia. After leaving school she worked in a shopping mall, later married her husband and raised a family with their 2 children in her home district.

3.However, she soon discovered that her husband was an alcoholic and whenever he was drunk, he would be abusive and violent towards her by slapping and beating her thereby causing her great stress and fear.

4.In 2018, her husband borrowed a bank loan and required the Applicant to work to help him to repay his loan, and so in 2020 she came to Hong Kong to work as a foreign domestic helper and to remit money to him every month to help him to repay his loan.

5.However, after her employment was prematurely terminated in March 2022 and that she was unable to remit any money to him, her husband became furious and threatened to kill her upon her return, and so the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 26 July 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 26 August 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 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 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 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 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 Bali where it would be difficult if not impossible for her husband to locate her.

8.On 10 October 2022, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as her notice of appeal was deemed to have been filed outside the 14-day period required under Section 37ZS (1) of the Immigration Ordinance, and in pursuance of Section 37ZT (2) of the Ordinance as amended, the Board proceeded to decide, as a preliminary decision without a hearing, whether to allow the late filing of the Applicant’s notice of appeal by taking account of the statement of reasons stated in the notice of appeal for the late filing and the evidence relied on in support of the reasons as stipulated by the said subsection.

9.By a Decision[1] dated 19 May 2023, the Board refused to allow the late filing of the Applicant’s notice of appeal upon finding that the Applicant received the decision from her lawyer on 30 August 2022, that the deadline for her to file her notice of appeal was therefore 13 September 2022, that she was some 27 days late with her notice of appeal that the delay was considered as substantial, that her stated reason of not wishing to return to her home country dur to fear of being harmed by her husband cannot be accepted as good or valid reason for her late filing, and that there is no evidence to satisfy the Board that she had exercised all due diligence to file her notice of appeal within the specified period but failed to do so due to circumstances beyond her control.

10.On 19 June 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 or his supporting affirmation of the same date to which she just attached a copy of the decision but without putting forth any proper ground for her intended challenge. As such, and in the absence of any error of law or irrationality or procedural unfairness in the Board’s 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.

11.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.

12.In the Applicant’s case, the Board refused the late filing of her notice of appeal for the thorough and detailed analysis and reasoning set out in its decision in accordance with Section 37ZT of the Immigration Ordinance, and in the absence of any error of law or procedural unfairness in the Board’s decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13.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 the Director’s consideration and assessment of the Applicant’s claim or the Board’s decision to refuse the late filing of her notice of appeal.

14.Moreover, the Applicant has recently on 1 September 2026 in writing requested to withdraw her application as her problems in her home country have been resolved that she now wants to return to Indonesia as soon as possible.

15.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 problem for her to return to her home country, I accordingly dismiss her leave application.

Dated the 8^th day of October 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 8 October 2026 Banowati 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 8 October 2026 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 21045 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 699/22 (formerly RBCZ 5000598/22) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)