NURUL WAHYUNI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 151/2023

[2026] HKCFI 3012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 151 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 oral submissions by the Applicant 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.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 3 February 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 dated 23 November 2022 (the “Board” and the “Board’s Decision”). By that decision, the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration dated 31 August 2021 (the “Director’s Decision”), which had rejected her non-refoulement claims 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 attended the oral hearing and referred to her marriage certificate exhibited to her further Affirmation dated 13 April 2026. She informed the Court that she got married in Hong Kong and is currently waiting for the grant of her visa.

Discussion

4.  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. [2]

5.  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.[3]  They can be summarized as follows:-

(1)  “I do not agree with the Director of Immigration Decision. Director did not consider my claim. I think Director did not see my claim. Any one if on[e] time see my case/claim he must grant.” (“Ground 1”)

(2)  “I think Director had only one job and that is dismissed my claim. I never think this result, even I did not believe when I see Director of Immigration Decision.” (“Ground 2”)

(3)  “I submit[ted] some documents to Director some are my mother language. Immigration did not accept my documents. I requested to officer to give me time to translate, but he did not give.” (“Ground 3”)

6.  Most if not all of the grounds provided in her Affirmation in support of the Leave Application are directed against the Director’s Decision only. As the Applicant had already appealed the Director’s Decision to the Board which was conducted by way of rehearing, the Board’s Decision effectively supersedes the Director’s Decision.[4]  Hence, the Director’s Decision is not a decision which is susceptible to judicial review. The above grounds directed against the Director’s Decision must be dismissed.

7.  I have also scrutinized the Board’s Decision carefully and come to the view that none of the aforesaid grounds (even if directed against the Board’s Decision) can be established or considered as valid or effective public law grounds.

8.  First, 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.[5]

9.  In particular, Ground 3 is obviously untrue and must be rejected. It would appear from the Director’s Decision that the Applicant was initially assisted by the Duty Lawyer Service. The Applicant did not submit any documentary evidence to the Board in support of her then appeal (see: Paragraph 10 of the Board’s Decision). At the hearing before the Board, she also confirmed that she would adopt her representations under the NCF and RI as part of her evidence and that no amendment or update to those representations was necessary (see: Paragraph 33 of the Board’s Decision). There was no indication that the Applicant had requested to submit further documents to the Board.

10.  Second, the Board was acutely aware of the Applicant’s claim that if she was to be returned to Indonesia, she would be harmed and/or killed by her husband for her extra-marital affair in Hong Kong. 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, the Board rejected her factual account entirely (see: Paragraphs 21, 32 to 50 of the Board’s Decision). The Board was also of the view that (1) there was no evidence that the Applicant had a well-founded fear of ill‑treatment that is of a sufficiently grave nature; (2) reasonably sufficient state protection would be available; and (3) if relevant or necessary, internal relocation within Indonesia would be a viable option (see: Paragraphs 101 to 105 of the Board’s Decision).

11.  It follows that the remaining grounds have no merit and must be rejected. Likewise, the written submissions set out in the Applicant’s further Affirmation do not add substance to the Leave Application. 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.

12.  Likewise, the Applicant’s latest family circumstances or her marriage in Hong Kong do not add substance. The same is irrelevant insofar as the Leave Application is concerned.[6]

13.  Third, in all circumstances, I can discern no error of law or procedural unfairness or irrationality on the part of the Board in the assessment and rejection of the Applicant’s claim.

Conclusion

14.  Accordingly, I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success.[7]  I dismiss the 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