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HCAL 1929/2020
[2025] HKCFI 4579
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1929 OF 2020
BETWEEN
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Yeni Andriani |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 25 September 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 10 September 2020 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001929_2020_files/the_Board's_Decision.pdf
2. The Board decided that the applicant’ claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board rejected the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 9 December 2019 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.
Amendments
3. In Form 86, the applicant named the Board / Non-Refoulment Claim Petition Office as the 1st putative respondent and the Director as the 2ndputative respondent and spelt the Board’s name wrong.
4. She also named the Board and Non-Refloument Claim Petition Office as the putative interested party, and again spelt the Board’s name incorrectly.
5. In fact, only the Board should be named as the putative respondent and the Director should be named as the putative interested party.
6. The Non-refoulement Claims Petition Office should not be named as a party at all, as it is just an office providing administrative and secretariat support to the adjudicators of the Board.
7. The applicant mentioned in her supporting affidavit dated 25 September 2020 that she made the affidavit to support her application for judicial review against the Director’s Decision. However, at the oral hearing before this court on 11 September 2025, she confirmed that her application was made only in respect of the Board’s Decision.
8. In any event, the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). Thus, the Director’s Decision cannot be the subject matter of the Leave Application and the Director should not be made the 2nd putative respondent at all.
9. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.
The applicant’s case
10. It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.
11. In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed or killed by a loan shark named Mr Asep (“Asep”) due to the fact that she owed him money. In addition, she feared that she would be harmed or killed by her father, her brothers and her brother-in-law as she had changed her religion from Muslim to Christianity.
Oral hearing
12. The applicant requested for an oral hearing of the Leave Application, and her case was heard on 11 September 2025.
13. At the hearing, the applicant said that the decision from the Immigration was not incorrect but she just wanted to have it reconsidered. She also said that she still had problems in her home country and she wanted to get married with her boyfriend in Hong Kong. Thus, the applicant was not willing to go back to Indonesia and asked this court to give her some time to take care of her problems.
Grounds for judicial review
14. The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
15. The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation.
16. However, in a letter dated 4 June 2025, which was received by this court on 7 July 2025, the applicant stated that she could not go back to Indonesia because her life would still be in danger. Her family could not support her and she has no parents. Her father and mother had already passed away a long time ago. The problem she had in Indonesia was about the money she borrowed, and “they” were always waiting for her and would not stop finding her. They always threatened her and her life was very risky.
17. The applicant also stated in the said letter that she actually had a Christian boyfriend here in Hong Kong. Her family did not like him because of his religion and they would not accept him. The family scolded her and had discrimination about it. As aforesaid, she also mentioned at the oral hearing before this court that she wanted to get married with her boyfriend in Hong Kong.
Discussion
18. First of all, as can be seen from the Board’s Decision, the applicant’s problems including her fear arising from her unpaid debt and from her family’s rejection of her conversion from Muslim to Christianity had all been considered by the Board.
19. The facts that she intended to marry her boyfriend and her family did not accept him were not raised as a cause of fear of harm for the consideration of the Board.
20. As held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.
21. The role 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. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration[2018] HKCA524).
22. Thus, the applicant cannot ask this court to re-assess the facts of her case, but this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irregularities.
23. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 8 June 2020. The applicant was present at the hearing and thus was given the chance to present her case to the Board in person.
24. However, at the Board’s hearing, the applicant indicated that she did not want to give evidence but relied upon the statement she made in the Non-refoulement Claim Form. The Board did, however, asked her some questions to which she answered.
25. While the Board could not dismiss as being untrue the assertions the applicant made with regard to her conversion to Christianity, the Board had grave doubts as to the veracity of her assertions regarding Asep and indeed the existence of any loan with him at all.
26. The applicant’s reason for her delay in seeking protection by making a non-refoulement claim was that after her last employment contract was terminated, she worked illegally as she wanted to continue her repayments to Asep. However, on her own case, she made no repayments to Asep at all. This cast doubt on the applicant’s case.
27. The Board considered that the entire case for the claimant was based upon bare assertions and was unsupported by any admissible evidence whatsoever, and many of which were themselves based upon hearsay.
28. Even if the applicant’s assertions regarding her conversion to Christianity were assumed to be true, she was only slapped by her father on one occasion, causing her cheeks to become red. At no time did she suffer any injuries that were of the degree of severity or intensity required to establish a claim for non-refoulement protection under the USM.
29. The Board concluded that the applicant’s fear of harm from the loan shark and her family was based solely on unsupported assertions and hearsay. The applicant had failed to establish that her past experiences amounted to torture as defined in Section 37U(1) of the Immigration Ordinance. She did not suffer any severe mental or physical pain or suffering at any stage in the past. The Board was not persuaded even to the low standard required that the applicant would be subjected to any ill-treatment if she were refouled to Indonesia.
30. Furthermore, there was no evidence to suggest that any threats or assaults by either Azep or her family members would be inflicted on her by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
31. The Board also found from country of origin information (“COI”) that conversion between recognised religious groups did occur in Indonesia and was permitted by law in Indonesia.
32. The Board also found relocation within Indonesia to an area other than her home village was a perfectly viable alternative to the applicant in order to avoid both Asep and her family members. Despite the applicant’s assertions to the contrary, the Board was satisfied that relocation to Jakarta was a perfectly viable option for the applicant.
33. In view of its findings, the Board did not consider that the applicant would face a real risk or had established a well-founded fear of any of the proscribed forms of harm should she return to Indonesia. Thus, the Board concluded that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the USM.
34. The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision. The applicant’s alleged dangerous situations had been fully considered but rejected by the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
35. Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.
36. In PoFunChanvWinnieCheung (2007) 10HKCFAR676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
37. For reasons aforesaid, the Leave Application is dismissed.
Dated the 30thday of September 2025
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( Irene LEE ) |
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for Registrar, High Court |
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/Handed to the applicant/the applicant’s solicitors
on: 30 September 2025
Applicant’s ref. no:
Nil |
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Sent/Handed 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:
30 September 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 16577/19/12/43/I1801
Director of Immigration
Putative interested party’s ref. no.:
RBCZ 10738/19
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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