UMU SULEM v. TORTURE CLAIMS APPEAL BOARD

HCAL 155/2025

[2025] HKCFI 5025

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 155 OF 2025

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

Following:

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

Observations for the Applicant:

1.  The Applicant is a 35-year-old national of Indonesia who last arrived in Hong Kong on 25 February 2024 as a visitor with permission to remain as such up to 26 March 2024 when she did not depart and instead overstayed, and was arrested by police on 25 February 2024. 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 mother and siblings due to her sexual orientation.  

2.  The Applicant was born and raised in a Muslim family in Watujaya, Kec Tonjong, Brebes, Jawa Tengah, Indonesia. After leaving school she worked as a cashier to make her living, and in 2013 she went to Taiwan to work as a domestic helper, during which she fell in love with the employer’s daughter who was a transgender male, and in 2014 they registered their marriage in Taiwan, but of which she did not inform her family in Indonesia for fear of their disapproval.

3.  In 2014, she returned to Indonesia to work in the factory, during which her husband would visit her from time to time when they would stay in some hotel, and in 2018 she went to work in Malaysia.

4.  In 2021, the Applicant told her family about her marriage, but to which her mother and siblings became furious and accused her for bringing shame and dishonor to her Muslim family, and that her mother disowned her from the family and threatened her never to return. 

5.  As a result, the Applicant departed Indonesia in 2022 to come to Hong Kong to work as a foreign domestic helper, and upon the completion of her employment she then left Hong Kong, only to return in February 2024 as a visitor and subsequently overstayed, and upon her 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 May 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 14 June 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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her mother and siblings 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 them to seriously harm or kill her other than angry words and empty threats to disown her from their family uttered once , nor is there any evidence of any threats from any Muslim in her community prior to her departure of Indonesia, that in any event it was a private family dispute between her and her mother and sister 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 there are laws and constitution in Indonesia to protect the rights of its citizens including members of the LGBTI social group and with various governmental departments and NGOs to provide support and assistance to the Applicant, and that reasonable internal relocation alternatives are also 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 where it would be difficult if not impossible for her mother and siblings to locate her.

8.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 24 September 2024 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 31 October 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 being a lesbian and had married a transgender male in Taiwan which was disapproved by her mother and siblings but found no evidence of any real intention of them to harm her other than just angry words to disown her from their family of which the Applicant had conceded during the hearing that there is no real risk of her being harmed by her family over her sexual orientation, and that in any event it was a private family dispute between her and her mother and siblings only without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia if resorted to 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 family, while relevant COI show that there are laws and constitutions in Indonesia to protect the rights of its citizens including members of the LGBTI social groups as well as support and assistance from various governmental departments and NGOs that the Board concluded that the Applicant’s claim for non-refoulement protection failed on all applicable grounds.    

10.  On 13 January 2025, 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 her supporting affirmation of the same date to which she just attached a copy of the decision 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 her claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law 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 to challenge the findings of the Board.

13.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part 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.

14.  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 recently on 1 September 2025 filed an affirmation requesting to withdraw her application as her problem is “finished” that she now wants to return to her home country.

16.  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 of no more problem 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