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HCAL 1512/2024
[2026] HKCFI 4486
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1512 OF 2024
BETWEEN
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Pelni |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative Respondent |
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and |
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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:
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 last arrived in Hong Kong on 29 December 2022 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 12 June 2024 or within 14 days of its early termination, but when her employment was prematurely terminated on 13 October 2023, she did not depart and instead overstayed, and was arrested by police on 3 February 2024. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her step-brother over their personal dispute.
2. The Applicant was born and raised in Village Dusun Loloan, Kec. Bayan, Lombok Utara, Indonesia where her parents passed away while she was still at school, and that she then resided with her elder step-brother in the same village.
3. After leaving school she worked as a tour guide in her home district to make her living before coming to Hong Kong in 2018 to work as a foreign domestic helper.
4. While working in Hong Kong in early 2023, the Applicant was told by her elder step-brother on the phone from Indonesia that he had arranged for her to marry a friend of his, and when the Applicant refused as she had never even met that person, her step-brother became furious and threatened to kill her if she failed to do as he said.
5. As a result the Applicant ceased all further contact with her step-brother, but after her last employment was prematurely terminated in October 2023, 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 13 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 9 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 all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there would be any real and substantial risk of her being harmed or killed by her step-brother over her refusal to marry his friend upon her return to Indonesia 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 step-brother to seriously harm or kill her other than just some angry words and empty threats, that in any event it was a private family 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”) shows 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 step-brother to locate her.
8. On 16 April 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 19 July 2024 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 30 August 2024 her appeal was dismissed by the Board which also confirmed the Director’s decision.
9. In its decision[1] the Board accepted the Applicant’s claim of threats from her step-brother over her refusal to marry his friend as arranged but found no reliable evidence of any real intention of her step-brother to seriously harm or kill her other than just angry words and empty threats, and that in any event it was a private family 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 as well as reasonable internal relocation for her to move safely to other parts of the country without any risk of being located by her step-brother that her claim for non-refoulement protection failed on all applicable grounds.
10. On 4 September 2024 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no proper ground for seeking relief was given in her Form or in her supporting affirmation of the same date in which she just cited some legal principles applicable to non-refoulement claims and made some bald assertion that the Adjudicator did not give her true decision but without any details or particulars or elaboration as to how it was so. 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 her 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 fact is that it has also been correctly established by both the Director and the Board in their 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 parts 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.
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 their consideration and assessment of the Applicant’s claim.
14. Moreover, the Applicant has recently on 8 July 2026 in writing requested to withdraw her application as it is now safe for her to return to her home country.
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 that it is safe for her to return to her home country, I accordingly dismiss her leave application.
Dated the 14th day of August 2026
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(Joyce Ooi)
for Registrar, High Court
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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 his solicitors must:
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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)).
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Sent to the Applicant on 14 August 2026
Pelni
Applicant’s ref. no.:
Nil. |
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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 14 August 2026
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 23439
Director of Immigration
Putative Respondent’s ref. no.:
QA T/C 585/24 (formerly RBCZ 5000605/24)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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