Umi Asih v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1191/2022

[2025] HKCFI 4199

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1191 of 2022

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 20 September 2022 of the Torture Claims Appeal Board (“the Board’s Decision). 

2.The applicant requested an oral hearing.  She appeared before the Court on 22 August 2025. 

The applicant

3.The applicant is a national of Indonesia.  She came to Hong Kong on 12 October 2016 to work as a domestic helper.  Her employed contract was terminated, but she overstayed.  She was arrested and referred to the Immigration Department where she lodged a non-refoulement claim on the basis that, if refouled, she will be harmed or killed by her mother, the local villagers and Mohammed. 

4.According to the applicant, her mother was furious that she had converted to Christianity, the same reason for the local villagers threatened to kill her if she returns to Indonesia.  Mohammad was angry because she refused to marry him. 

5.Details of her claim are set out in the Board’s Decision.  See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL001191_2022_files/the_Board's_Decision.pdf.

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”). 

7.By way of Notice of Decision dated 3 November 2021 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.  Besides, state protection will be available and internal relocation is viable, which will mitigate or neutralize the applicable risks if she returns to India. 

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 21 June 2022, the Board conducted an oral hearing for her.  She had given oral evidence and answered the Board’s questions.  

9.Having considered the evidence, the Board found:

(1)  because of her conversion to Christianity, her mother was angry and had uttered threats of inflicting harm on her, but the Board did not accept that her mother was serious to harm or kill her; [70]-[71]

(2)  her mother, her ex-husband or anyone else in the family has not any intention to cause her any harm now or in the foreseeable future if she returns to Indonesia; [74]

(3)  there was no evidence to suggest that there is any real risk of serious harm or death to her at the hands of the villagers if she returns to Indonesia; [78]-[79] & [85]

(4)  police protection will be available to her; [88]; and

(5)  internal relocation is viable.  [89]-91]

10.For the above reasons, the Board dismissed her appeal. 

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed Form 86 dated 3 November 2022 for leave to apply for judicial review of the Board’s Decision. 

12.The applicant has not raised any specific ground to challenge the Board’s Decision.  

DISCUSSION

13.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal.  The Court will not usurp the fact-finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1). 

14.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant said that she intended to withdraw her application because her problems had been solved and she wanted to return to her country. 

15.In view of the applicant’s submission before the Court, I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application. 

Dated the 23^rd day of September 2025

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