Kumaenah Bt Tarlim Kasim v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 688/2023

[2025] HKCFI 5707

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 688 of 2023

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 To:

1.  Leave to withdraw her application to withdraw her leave application be allowed; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 11 May 2023 for leave to apply for judicial review (the “leave application”) of a decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 2 May 2023 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 20 April 2022 (the “Notice”), refusing her application for non‑refoulement protection.

2.On 11 August 2025, she applied by letter to withdraw her leave application (the “withdrawal application”). But on 29 September 2025, she applied by affirmation to withdraw her withdrawal application. Assuming in her favour that her application to withdraw was not voluntarily made with full understanding of the consequences of the withdrawal, this Court allowed her to withdrawal her withdrawal application and continued to process her leave application.

The Applicant’s claim

3.The Applicant is an Indonesian national. Her personal background, the factual background leading to the present application, the basis of her claim, the arguments she advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below[1] for reference. In gist, the Applicant claims she will be harmed or killed by her husband for refusing his demand for money.

Grounds for judicial review

4.The Applicant did not advance any grounds for judicial review in her Form 86 or supporting affirmation. At the hearing, after the legal principles applicable to judicial review had been explained to her, she confirmed she had no complaint about errors of law in the Decision, procedural unfairness or irrationality in the Decision and would leave it to the Court to scrutinize the Decision for those vitiating elements. In the absence of any specific grounds of application, the court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Board’s Decision sought to be reviewed.

Overall scrutiny

5.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the Unified Screening Mechanism (“USM”); the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board analysed the evidence carefully and tested it against common sense, inherent probability and the country of origin information.

6.The Board assessed her claim on the basis of the case as she asserted. It found the Applicant had failed to show the alleged persecution by her husband was caused by any of the reasons protected by the Convention relating to the status of Refugees and its 1967 Protocol. It found she had failed to show she would face ill-treatment of a minimum level of severity, and a genuine and substantial risk of being subjected to such mistreatment, if refouled. It considered her fear of persecution was not well-founded and adequate state protection would be available.

7.Applying the law applicable to non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

8.For the above reasons, the Applicant’s application to withdrawal her withdrawal application is allowed, but her leave application is refused.

Dated the 25^th day of November 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