Case Document

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HCAL 974/2023

[2026] HKCFI 5629

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 974 OF 2023

BETWEEN

	Riana	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 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 41-year-old national of Indonesia who last arrived in Hong Kong on 29 November 2020 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her employment was prematurely terminated on 23 October 2021, she did not depart and instead overstayed, and was arrested by police some 11 months later on 14 September 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 marital disputes and/or by the local community in her home village due to 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 Ciwaringin, Palimanan, Cirebon, Jawa Barat, Indonesia. After leaving school she worked in a factory in her home village to make her living before going to Singapore and then Hong Kong in 2006 to work as a foreign domestic helper.

3.In 2017, she returned to Indonesia to marry her husband and raised a family with their daughter in her home village.

4.However, soon after giving birth to her daughter the Applicant discovered her true sexual orientation as a lesbian, and started having a relationship with another woman, but later when it was discovered by her husband, he became furious and beat her severely and locked her inside a room for days before she subsequently managed to make her escape and fled to Pangandaran District to take shelter in her aunt’s place.

5.In order to avoid further threats from her husband, the Applicant ceased all further contact with him since 2019, and in November 2020 she came to Hong Kong to again work as a foreign domestic helper, but after her employment was prematurely terminated in October 2021, she was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent arrest by police some 11 months later in September 2022, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 24 November 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 14 December 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 or the local community upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from her husband and the absence of any from the local community, that there is no evidence of any real intention of her husband to seriously harm or kill her other than angry words and empty threats while as noted above that there is no evidence of any such risk at all from anyone in her local community prior to her departure of the country, 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 if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that there are laws to protect LGBTQ individuals or groups in Indonesia and relevant governmental departments and NGOs to provide supports and assistances to such individuals as well as reasonable internal relocation alternatives also available within the country 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 same sex behaviours are much more tolerable and where it would be difficult if not impossible for her husband to locate her.

8.On 22 December 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 28 March 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 20 April 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 discrepancies and evasiveness in the Applicant’s evidence that it doubted and rejected the credibility of her claims of fear of harm from her husband with whom she already conceded of having no further contact since 2019 or of any threats from anyone in her home village over her claimed sexual orientation 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 after 11 months later and only after her arrest by the police, that even if her account of threats from her husband were true that there was no reliable evidence of any real intention of him to seriously harm or kill her other than just angry words and empty threats or of any adverse interest that he may still have in her after all these years since their last contact in 2019, and that in any event it was a private marital 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 in large cities such as Jakarta where she had stayed before without incidents and without any risk of being located by her husband and where there are more tolerance for LGBTQ groups if her claimed same sex orientation were true that her claim for non-refoulement protection failed on all applicable grounds.

10.On 20 June 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 tehri translations;

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

11.These are however are all 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 how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what supporting documents that the Adjudicator had refused to allow her to submit without translations, or in what way was the interpreter impatient and unhelpful to her during her hearing before the Board. As none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, and as she also failed to attend the scheduled hearing of her application, 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 Board rejected her claim 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 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 to challenge the finding of the Board.

14.Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s 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.

15.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.

16.Moreover, the Applicant has recently on 28 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.

17.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 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 Riana 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 21301 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1175/22 (formerly RBCZ 5001048/22) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)