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HCAL 731/2023
[2026] HKCFI 3106
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 731 OF 2023
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BETWEEN
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Tinggar Lestari |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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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. 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 16 May 2023, 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 5 May 2023 (“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/2023/HCAL000731_2023_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 30 November 2021 and confirmed the same, which rejected her non-refoulement claim.
The applicant’s case
3. 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.
4. In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she feared that she would be harmed or killed by her creditor Mr Paijo due to her inability to repay a loan borrowed from him.
Disposal on paper
5. The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.
Grounds for judicial review
6. 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).
7. The applicant did not advance any ground for her intended judicial review in her Form 86.
8. In her supporting affirmation dated 16 May 2023, apart from stating that the Board’s Decision had error, the applicant stated 6 grounds for the intended judicial review under the heading “GROUNDS FOR JUDICIAL REVIEW”, which are summarised as follows:-
(1) the adjudicator did not consider her claim;
(2) the adjudicator did not accept her documents as the documents were in her mother language;
(3) the officer refused to give her time to translate the documents because he had no time;
(4) the translator did not help her at all and became angry if the applicant did not understand;
(5) the interpreter asked her not to take long time for interview as he had another job; and
(6) she asked the court to help her and save her life.
Discussion
9. First of all, the applicant’s danger in her home country had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
10. The mere allegation that the Board’s Decision had error without providing any details as to what error there was cannot help the applicant at all.
11. As to the matters that were stated as “GROUNDS FOR JUDICIAL REVIEW”, all the grounds (except ground (6) which is not a ground at all) were asserted without any specificity. Many applicants in similar applications used them like a template without any regard to their own cases. The applicant is no exception.
12. She did not state: (1) how the adjudicator did not consider her claim; (2) which part(s) of her claim was not considered; (3) what documents she intended to submit were rejected as they were not translated; (4) how the interpreter or translator’s attitude had prejudiced her; and (5) what she wanted to tell the Board was not presented because of the attitude of the interpreter or translator.
13. The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.
14. Thus, the general assertions that were contained in the applicant’s affirmation cannot help her at all.
15. 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] HKCA 524).
16. Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any specific ground being advanced by the applicant for the intended judicial review.
17. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 9 February 2023. The applicant was present and was thus given the opportunity to present her case to the Board in person.
18. The Board laid out its assessment of the applicant’s claim in paragraphs 29 to 48 of the Board’s Decision, and it is not necessary to repeat the same here.
19. In gist, the Board found the applicant’s fear was due to the fact that she did not repay the outstanding loan and interest to the creditor. She had never suffered any physical injury by the creditor. The creditor only told the applicant’s friend Indra that the applicant would be killed if she failed to return the money. No severe pain or suffering within the definition of torture was ever inflicted upon the applicant. There was no suggestion of any state acquiescence in the applicant’s case, and the applicant’s fear of the creditor was not for a Convention reason.
20. Moreover, the Board found from country of origin information (“COI”) that, despite the applicant’s view that Indonesian police were corrupt, the Indonesian government had been working hard to combat the corruption problem. COI also reflected that there were non-government organisations (“NGOs) in Indonesia to provide protection and assistance for abused women and women in need. The Board found that the applicant could resort to these NGOs for assistance.
21. In addition, as can be seen in paragraphs 49 to 56 of the Board’s Decision, the Board considered it not unduly harsh for the applicant to relocate to other areas in Indonesia to lower or negate the risk from the creditor.
22. Thus, the Board concluded that the applicant failed to establish a case for non-refoulement protection in Hong Kong.
23. The finding of facts including the assessment of evidence, COI and risk of harm was primarily within the realm of the Board in dealing with her appeal/petition. The applicant’s alleged danger in her home country had been duly assessed by the Board. The Board was entitled to reach its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
24. 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.
25. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, 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 intended judicial review has no realistic prospects of success at all, and hence the Leave Application must be dismissed.
Conclusion
26. For reasons aforesaid, the Leave Application is dismissed.
Dated the 27th day of May 2026
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( Gladys LEE )
for Registrar, High Court
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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: 27/05/2026
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: 27/05/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 19458
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1718/21 (Formerly RBCZ 10822/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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