|
BETWEEN
|
| |
Nangimah |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board |
Putative |
| |
|
Respondent |
| |
and |
|
| |
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 to withdraw the application for leave to apply for judicial review be refused.
3. 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 20 December 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 15 December 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/HCAL002287_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 confirmed the decision of the Director of Immigration (“the Director”) dated 28 October 2022, which rejected the applicant’s non-refoulement claim.
Amendments
3. The applicant named the Board and “non-reFuLement Claims Petition OFFice” as both the putative respondents and the putative interested parties in Form 86.
4. In fact, the Board should only be the putative respondent and the Director should be the putative interested party.
5. The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a party at all.
6. Thus, this court 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
7. 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.
8. In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be at risk of being harmed or killed by Agung, her fiancé, as she did not marry him, and she would be punished by her neighbor in the same village due to her sexual inclination.
Withdrawal of the Leave Application
9. Before the Leave Application was dealt with, the applicant filed an ex parte application by way of her affirmation dated 22 September 2025 to cancel all her non-refoulement claims including the Leave Application. However, she did not state that it was safe for her to return to her home country or that her problem in her home country had been solved.
10. There is no evidence to show that the applicant made the above withdrawal application other than out of her own volition. With the withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing of the Leave Application even though she had previously requested one.
11. However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-
“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”
12. Thus, it is not right to leave the action at large by granting leave to withdraw to the applicant. This court will proceed to deal with the merits of the Leave Application.
Grounds for judicial review
13. 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).
14. The applicant did not assert any grounds for her intended judicial review in Form 86. In her supporting affirmation dated 20 December 2023, she merely repeated her danger in Indonesia as a lesbian. She stated that all Muslim people did not like lesbian people, and all Muslim leader and the general public became her enemy.
Discussion
15. First of all, the applicant’s claimed threat from the Muslims as a whole or from Muslim leaders and the general public was not presented before the Board for assessment. She only mentioned that she would be punished by her neighbor in the same village in Indonesia.
16. The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that 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.
17. Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition.
18. Thus, the applicant cannot rely on any materials not placed before the Board as a ground for her intended judicial review. There is no reason for this court to consider her non-refoulement claim afresh based on the new alleged threats raised by the applicant in her supporting affirmation.
19. 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, supra).
20. 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 valid ground being advanced by the applicant for the intended judicial review.
21. In assessing the applicant’s appeal/petition, the Board arranged an oral hearing on 5 July 2023 and the applicant was present. Thus, the applicant did have the opportunity to present her case to the Board in person.
22. Having considered the applicant’s claims and all the evidence, the Board found it unconvincing that the applicant’s fiancé would cause her harm or kill her, he had gone away since January 2019 and the applicant never met him again. The applicant’s mother claimed that her fiancé would kill her was hearsay evidence only. Although the applicant claimed that her fiancé raped her in January 2019, she did not report the rape incident or the threat from him to the police or other authorities in Indonesia. Only the applicant’s parents and elder brother knew that she was a lesbian, there was no suggestion that any of her neighbours even knew her sexual inclination. The applicant had all along managed to leave Indonesia on the strength of her passport without difficulties.
23. Moreover, the applicant did not make her non-refoulement claim when she arrived in Hong Kong in March 2019, but only did so when she was arrested by the police in August 2022. It was not suggested that the threat from the fiancé was imminent. There was no evidence that the fiancé was a public official or acting in any official capacity, or that the Indonesian government was involved in the applicant’s private dispute with her fiancé. The Board also found that the applicant’s claimed threat from the fiancé had not reached a minimum level of severity. There was no, or no reliable evidence that the applicant’s fiancé had ill-treated the applicant with an intention listed in the definition of torture in section 37U of the Immigration Ordinance, or that the applicant had a well-founded fear of persecution for one or more reasons enumerated in Article 1A(2) of the RC[1].
24. As to the availability of state protection, the Board found from country of origin information (“COI”) that despite the existence of incompetence and corruption in government authorities, steps were being taken by the Indonesian government to combat corruption, to protect the rights of women and to provide supports to LGBT community. COI also showed increasing supports from the state, non-state and public actors for LGBT in Indonesia. The Board found that reasonable state protection would be available to the applicant.
25. The Board also considered the viability of internal relocation for the applicant. The Board considered that the applicant, being able-bodied with years of work experience, could relocate to other parts of Indonesia without undue hardship. It would be highly unlikely for her fiancé to locate her in such a vast country, in case he would.
26. Thus, the Board found that the applicant was unable to make out her claims for non-refoulement protection based on any of the applicable grounds under the USM.
27. The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
28. 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.
29. 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 applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
30. For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed.
Dated the 14th day of January 2026
| |
( Irene LEE )
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 the applicant’s solicitors must:
|
|
|
|
|
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)).
|
|
Sent/Handed to the applicant/the applicant’s solicitors on:
14 January 2026
Applicant’s ref. no:
Nil |
|
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:
14 January 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 21142
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 967/22
(formerly RBCZ 5000854/22)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] RC is the abbreviation for the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.