FATIKHA v. TORTURE CLAIMS APPEAL BOARD

HCAL 2245/2023

[2026] HKCFI 1699

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2245 OF 2023

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;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 39-year-old national of Indonesia who last arrived in Hong Kong on 20 May 2019 with permission to continue 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 last employment was prematurely terminated on 17 march 2021, she did not depart and instead overstayed, and was arrested by police on 4 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 step-father who had sexually abused her in the past and/or discriminated or persecuted by the Muslim community 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 a village in DS Lemahduwur, District Songgom, Brebes Regency, Central Java, Indonesia where she was raised by her mother after her parents separated when she was just a small child.

3.  While at school she realized her sexual orientation for female but kept it a secret from her family and friends, and only after leaving school when she worked as a domestic helper in Singapore and then in Hong Kong as a foreign domestic helper that she started to have various sexual relationship with other women.

4.  In 2015 her mother remarried her step-father, and in 2019 when she returned to her home in Indonesia for holiday, her step-father tried to sexually abuse her, and later warned her not to report the matter to anyone or else he would kill her, whereupon the Applicant became fearful for her life and returned to Hong Kong to resume her employment.

5.  However, after her last employment was prematurely terminated in March 2021, she was afraid to return to Indonesia due to her fear of being harmed by her step-father or the Muslim community over her sexual orientation, and so she 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 20 July 2022 and attended screening interview before the Immigration Department with legal representation.

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 step-father or the Muslim community upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her step-father to seriously harm or kill her in what was essentially some private dispute between her and her step-father 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 where it would be difficult if not impossible for her step-father to locate her, while objective COI also show that the Indonesian government have taken steps to protect and safeguard the human rights of sexual minorities as well as providing help and support from various governmental departments and NGOs, and that sexual minorities are able to live relatively risk free in large cities such as Jakarta and Bali where the Applicant can relocate without any real risk of discrimination or persecution as a lesbian.

8.  On 9 September 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 with her lawyer from DLS during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board and with submissions made on her behalf by her lawyer. On 7 December 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1] the Board found no reliable evidence of any real intention of her step-father to seriously harm or kill the Applicant even if her account of being sexually abused by him were true, and that in any event it was a private personal dispute between her and her step-father only without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia 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 step-father that it is not accepted that she would face any real risk of being harmed or killed by her step-father upon her return to Indonesia, while it is also accepted that she may be a lesbian and has been involved in romantic relationship with other women, it is her own evidence given to the Board that she will not live openly as a lesbian in Indonesia that on the basis of relevant COI that she would not face any real risk of persecution or ill-treatment as a member of the LGBT community if she were to relocate to large cities such as Jakarta or Bali, and given the absence of any pattern of gross flagrant or mass violation of human rights in Indonesia that the Board concluded that there is no real risk that the Applicant would be in danger of being subjected to any harm or ill-treatment due to her sexual orientation upon her return to Indonesia 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, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date in which she just cited some law and legal principles for non-refoulement claims and just asserted that the Board did not truly consider her claim 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 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.

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 rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his 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.

13.  Furthermore, 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 his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of , there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.  In the premises, and 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 21 January 2026 in writing requested to withdraw her application as it is now safe for her to return to her home country.

16.  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 that it is safe for her to return to her home country, I accordingly dismiss her leave application.

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

Form CALL-1