HENIK SRI RAHAYU v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 105/2023

[2026] HKCFI 3010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 105 of 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of documents only;          or
	consideration of documents and the Applicant being absent in open court;

1.  Form 86 be amended, naming the Torture Claims Appeal Board/Non‑refoulement Claims Petitions Office as the Putative Respondent and adding Director of Immigration as the Putative Interested Party.

2.  Extension of time for the application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office dated 21 October 2022 be refused.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 27 January 2023, the Applicant seeks leave to apply for judicial review (the “Leave Application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 21 October 2022 (the “Board’s Decision”). By that decision, the Board confirmed the decision of the Director of Immigration dated 28 December 2021 (the “Director’s Decision”), which had rejected her non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (“USM”).

2.  The Applicant’s background, the basis of her claim and the arguments she advanced had been set out in detail in the Board’s Decision. It is not necessary for me to repeat the same here. Unless otherwise specified, the abbreviations and descriptions used in the Board’s Decision, the hyperlink[1] to which is included below, are also adopted herein.

3.  The Applicant did not attend the oral hearing. I have therefore considered the Leave Application in respect of the Board’s Decision based on the materials available before me.[2]

Discussion

4.  The Leave Application was lodged out of time under Order 53 rule 4 of the Rules of High Court, Cap. 4A.

5.  In considering whether to extend time, the Court shall have regard to (1) the length of delay; (2) the reason for delay; (3) the merits of the intended application; and (4) any prejudice that may be occasioned to the applicant if leave is refused as against the prejudice to the respondent and the public administration if leave is granted and (5) question of general public importance.[3]

6.  First, the delay in question is around 6 days. However, the Applicant has not applied for an extension of time nor provided any explanation for the delay in her affirmation.

7.  Second, I am not persuaded that the Applicant’s intended application for judicial review is reasonably arguable with any realistic prospect of success.[4]

8.  Judicial review does not operate as a further avenue of appeal. The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision. The primary decision makers are the Director of Immigration (the “Director”) and the Board. Though in non‑refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are error of laws, procedural unfairness or irrationality in the decision of the Board. [5]

9.  In seeking to challenge the Board’s Decision, the Applicant ought to have clearly and precisely identified the grounds relied upon in the Form 86 and in her supporting affirmation. [6] The Applicant’s grounds can be summarized as follows:-

(1)  “Failure to properly apply para 2 of the UN committee against Torture General Comment No. 2 whereby satisfaction of a National states obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event…” (“Ground 1”)

(2)  “Failure to conduct sufficient inquiry into the relevant country of origin conditions…” (“Ground 2”)

(3)  “Failure to reasons for assessment of lack of BOR 2 risk and/or sufficient basis to support conclusion of lack of BOR 2 and BOR 3 risk…” (“Ground 3”)

(4)  “Failure to take into account the considerations of psychological strain and threats to me personally or threats to me directly to kill me.” (“Ground 4”)

(5)  “The TCAB Failure to consider our fear that my enemies still fear for me, I could no return to my country in this circumstance, therefore there are genuine risk awaiting for me, and I could not relocate other places because they could easily trace me wherever I hide in my country.” (“Ground 5”)

(6)  “No sufficient basis to conclude that I and my family members would not be at risk of being subjected to torture and/or/CIDTP upon refoulement.” (“Ground 6”).

10.  It is apparent that these grounds merely consist of generic, vague and unparticularized assertions using selected keywords and phrases without reference to any underlying facts or matters establishing why, how and where each of those complaints arise in relation to the Board’s Decision. General assertions without particulars are not effective grounds and cannot assist the Applicant.[7]

11.  The Board was acutely aware of the Applicant’s claim that if she was to be returned to Indonesia, she would be ill-treated or even killed by a loan shark i.e. Slamet, because she was unable to repay the loan. Having considered and assessed the material facts and evidence of the Applicant’s claim including her oral evidence as well as the relevant COI materials (see: Paragraph 25 of the Board’s Decision), the Board found that the Applicant was not a credible witness and rejected the factual basis of her claim (see: Paragraphs 37 and 38 of the Board’s Decision). The Board was therefore entitled to find that the Applicant faced no real risk of Proscribed Harm from Slamet and/or his subordinates if she was to be returned to Indonesia. By reason of the Board’s rejection of the factual basis of the Applicant’s claim and its finding on internal relocation being a viable option, it was not necessary for the Board to make findings on the level of the availability of state protection (see: Paragraph 41 of the Board’s Decision).

12.  It follows that none of the grounds put forward by the Applicant is engaged and the same must be rejected. The Board did properly and duly consider the Applicant’s claim with adequate reasons provided. It was simply entitled to come to the conclusions it did and reject the Applicant’s claim.

13.  I also do not find any error of law or procedural unfairness or irrationality on the part of the Board in the assessment and rejection of the Applicant’s claim.

14.  Finally, I discern no prejudice in refusing to allow the Applicant to proceed with an application that is, in any event, wholly unmeritorious. Conversely, allowing her to do so would disrupt and undermine the proper administration and cause prejudice to the Putative Respondent. For completeness, I also do not accept (if so contended by the Applicant) that the matter raises any question of general public importance requiring determination by the Court.

Conclusion

15.  I see no good reason to extend time for the Applicant to apply for leave to seek judicial review. I accordingly dismiss the 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