FITRI ASDINI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 746/2021

[2026] HKCFI 2804

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 746 of 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

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 24 May 2021 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 14 May 2021 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 21 March 2018 (the “Notice”), refusing her application for non‑refoulement protection. 

2.  The Applicant had requested an oral hearing.  A hearing on 22 April 2026 was scheduled for her and notice of hearing was sent to her by post on 8 April 2026 to her address as stated in her Form 86, and her address as discovered from the Immigration Department on 6 February 2026.  An attempt was made by a court staff on the afternoon before the date of the hearing to contact her by telephone to remind her of the hearing, but the call was not answered.  There is nothing to suggest that the Applicant had not received the notice of hearing or had moved.  The Court was satisfied that the notice of hearing had been duly served on the Applicant and that the Court had tried its best endeavour to bring the hearing to her notice.  However, she did not appear at the hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

The Applicant’s claim

3.  The Applicant is an Indonesian national, now aged 41.  She arrived in Hong Kong on 5 August 2016 to work as a foreign domestic helper but overstayed since 21 January 2017.  She was arrested on 22 February 2017 for overstaying.  Then, she lodged a non-refoulement claim by written signification on 2, 3, 6 and 8 March 2017.  Her claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].  It was rejected by the Director’s Notice.  Her appeal against the Notice was dismissed by the Board’s Decision.  She now applies for leave to apply for judicial review of that Decision.

4.  The Applicant’s personal background, the factual background leading to the present application, the basis of her claim and 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[5] for reference.  In gist, she claims she will be harmed or killed by her stepfather for refusing to date a rich man with a view to marry him and for having developed a lesbian relationship with another woman.   

The finding of the Board

5.  The Applicant claimed that she had been assaulted five or six times by her stepfather and burnt with cigarette butts.  She had sought medical treatment.  She could not produce any medical evidence but submitted some photographs of the injuries she suffered.  From the photographs and her account, the Board found the injuries she suffered did not attain the minimum level of severity and there was nothing to suggest that she had suffered mental injuries.  She could not stand the ill-treatment and moved out of the family home to live with her cousin in Jakarta.  She was informed by her cousin that her stepfather was very angry because of her lesbian relationship with another woman and threatened to kill her.  Her stepfather had never directly threatened to kill the Applicant.  The Board did not accept her stepfather had real intention to kill the Applicant.  If he had, he would have gone to her cousin’s home to kill her instead of giving her a verbal warning through her cousin. 

6.  The Board found the Applicant’s dispute with her stepfather a family dispute and that she had failed to prove that her feared ill-treatment was inflicted by public officials or persons able to wield the authority of the government and/or the state had any connection with the claim or had acquiesced in her ill-treatment.  It found the ill‑treatment did not fall within the meaning of ‘torture’ under section 37U(1) of the Immigration Ordinance and did not arise on account of any of the reasons enumerated in Article 1A(2) of the 1951 Convention relating to the status of refugees and its 1967 Protocol. 

7.  It found on the basis of country of origin information (“COI”) that the Indonesian government was able and willing to afford protection to the Applicant, but it was the Applicant’s own volition not to seek protection from the state and not that the Indonesian government or authorities were unable or unwilling to offer her protection.  It also found the feared harm and risk of harm were localized to the Applicant’s home locality; that she could avoid the harm and risk by relocating to other cities or areas within Indonesia; and it would not be unduly harsh for her to do so.

8.  Applying the law applicable to non-refoulement protection under the USM, it found the Applicant had failed to prove her entitlement to protection under any of the applicable grounds under the USM.  Hence, it dismissed her appeal.

The legal principles applicable to judicial review

9.  The function of the court in judicial review is not to re-assess the non‑refoulement claims afresh.  The primary decision-makers in a claim for non‑refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non‑refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[6].

Grounds for judicial review

10.  The Applicant did not advance any grounds of application in her Form 86 or her supporting affirmation.  In the absence of any specific grounds of application, the court in a judicial review could only scrutinize the Decision for errors of law, procedural unfairness or irrationality.

Overall scrutiny

11.  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 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 COI.  It basically accepted the Applicant’s factual evidence and made some further finding of fact on the basis of her evidence and the COI.  It gave full reasons for its finding.  On the evidence, it was open to the Board to make the findings as it did.  Applying the law applicable to non‑refoulement protection to the facts it found, the Board came to the conclusion that the Applicant is not entitled to non-refoulement protection under any of the four 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

12.  For the above reasons, the Applicant’s leave application is refused.

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

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