INDRIYANI AYU v. TORTURE CLAIMS APPEAL BOARD

HCAL 1396/2025

[2025] HKCFI 5901

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1396 OF 2025

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant or counsel in open court;

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 18 June 2025, 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 27 December 2024 (“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/2025/HCAL001396_2025_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 affirmed the decision of the Director of Immigration (“the Director”) dated 9 October 2024, which rejected the applicant’s non-refoulement claim.

Amendments

3.  The applicant named the Board and “Non-Refoulement Claims Petition Office” as both the putative respondents and the putative interested parties in Form 86, when only the Board should be named as the putative respondent and the Director should be named as the putative interested party.

4.  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.

5.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

Late application

6.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

7.  However, the applicant filed Form 86 on 18 June 2025, which was more than 5 months after the Board’s Decision (made on 27 December 2024). The applicant was hence late for more than 2 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

8.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

9.  The applicant did not make any application for extension of time and provided no explanation for the delay when she filed the Leave Application.

10.  The delay of more than 2 months is not insubstantial. More importantly, there is no merits of the intended judicial review as discussed below.

11.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

12.  However, for the sake of completeness, this court will still examine the merits of the Leave Application.

The applicant’s case

13.  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.

14.  In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be killed and/or harmed by her husband who had verbally threatened to kill and/or harm her if she divorced him.

Withdrawal of the Leave Application

15.  Before the Leave Application was dealt with, the applicant filed an affirmation dated 20 June 2025 to cancel the Leave Application.

16.  As stated in the applicant’s affirmation, she wanted to cancel all non-refoulement claims including appeal / JR (if any) in Hong Kong and there was no need to see her non-refoulement claim case officer. However, she did not state that it was safe for her to go back to her home country.

17.  There is no evidence to show that the applicant made the withdrawal application other than out of her own volition. With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application.

18.  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.”

19.  Thus, it is not right to leave the action at large. The applicant’s application to withdraw the Leave Application is therefore refused and this court will proceed to deal with the merits of the Leave Application.

Grounds for judicial review

20.  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).

21.  The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 18 June 2025. The applicant merely stated in the affirmation that she did not want to go back to Indonesia because her husband would kill her as he did not accept the applicant wanted to divorce him and her life would be in danger.

Discussion

22.  First of all, the applicant’s claimed fear from her husband 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 a judicial review.

23.  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).

24.  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.

25.  In assessing the applicant’s appeal, the Board held an oral hearing on 9 December 2024. The applicant was present and had an opportunity to present her case to the Board in person.

26.  After due consideration of the evidence and the oral testimony of the applicant, the Board did not accept that there had been continuing threats by the applicant’s husband against her after he had deserted the applicant. The Board was not satisfied that the applicant’s claim to fear any ongoing harm from her husband was truthful and there was no or no reliable evidence in support of the claim.

27.  Even taking the applicant’s case to its highest, on the applicant’s own evidence, she was only slapped once by her husband during a heated argument. The ill-treatment and injuries sustained did not amount to torture nor attain a minimum level of severity. Her problem with her husband was purely private and personal. There was no evidence of state acquiescence and the alleged ill-treatment was unrelated to any of the Convention reasons. The Board did not see any real chance that the applicant would be killed or otherwise tortured if refouled.

28.  The applicant had never approached the police or other government authorities for help. The Board was satisfied that based on objective country of origin information (“COI”), there should be reasonable protection for the applicant by the police or authorities.

29.  The Board found no evidence to suggest that the applicant’s husband, being a local fisherman, could in his personal capacity have the huge resources to trace and track the applicant down in such a vast country with such a large population. It was also highly questionable as to whether the husband still wanted, or had ever wanted, to “find” her. On the applicant’s own accounts of event, it was a desertion case and her husband had gone away for more than 3 years at the time of the Board’s Decision. Except in the initial few weeks after he left, he called and texted her threatening her not to divorce him, the husband never contacted her again, nor visited their daughter.

30.  Moreover, the Board found that it would not be unduly harsh for the applicant, being an able-bodied woman with 8 years of work experience as a domestic helper in Taiwan and Hong Kong, to relocate anywhere in Indonesia, say in Jakarta, Surabaya or Medan, whether in private homes or in hotels or boarding houses. Employment as such would not require her to have money beforehand, which addressed the applicant’s claim that she could not relocate because she did not have money to do so.

31.  Thus, the Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

32.  The assessment of evidence, COI materials and risk of harm was primarily within the realm of the Board. The applicant’s alleged danger in her home country had indeed been duly assessed by the Board. This court finds no errors of the Board in reaching its decision based on all the evidence before it.

33.  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.

34.  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

35.  For reasons aforesaid, the application for leave to withdraw the Leave Application is refused and the Leave Application is dismissed for being made out of time and also for lack of merits.

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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