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

HCAL 1575/2020

[2025] HKCFI 4716

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1575 of 2020

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 Applicant being absent in open court;

1.   Form 86 be amended, naming only the Torture Claims Appeal Board/
Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 28 July 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 17 June 2020 (the “TCAB Decision”), which affirmed the decisions of the Director of Immigration (the “DOI”) dated 25 July 2019.  She named the TCAB and the DOI both as proposed respondents.

2.  I amend the Form 86 on my own motion to name only the TCAB as the putative respondent and the DOI as the putative interested party.

3.  The Applicant requested for a hearing of this application but she was absent at the hearing.  I shall deal with this application on paper.

Background

4.  The Applicant is a national of Indonesia.  She seeks non-refoulement protection on the basis that she will be harmed or even killed by her husband (Jayadi) due to her father’s inability to repay money borrowed from Jayadi, and also because she has separated from him.  There were allegedly some violent incidents in the past from Jayadi.  The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1].  I shall therefore not repeat them.

Discussion

5.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

6.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement cases an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  A finding of fact is exclusively within the realm of the TCAB, and this court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.  The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.  Rather the grounds are set out in an exhibit to her affirmation in support (exhibit M-3).  She complains that the TCAB Decision was “not reasonable and unfair” because she ought to be protected from unlawful killing.  There seems to be a suggestion that the state has failed to provide reasonable protection to her. She further alleges that the TCAB fails to give due weight to the country of origin information.  On these bases she contends that the TCAB Decision was unfair and Wednesbury unreasonable.

9.  As can be seen from the TCAB Decision, the TCAB comprehensively took into account all the evidence available [12-56] and found that on the basis of the same, applying also the correct legal principles in respect of all four applicable grounds [70‑71, 76-77, 80, 83-84], the Applicant’s allegations were insufficient to make out any of the applicable grounds [72-75, 78-79, 81-82, 85-87].  In particular, the TCAB found the Applicant’s evidence to be incredible [57-67], and that the Applicant had not had contact with Jayadi for 16 years on her own evidence [68].

10.  Further, the TCAB also took into account the Country of Origin Information [59‑60] and that relocation is an option to the Applicant [68].

11.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.  The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed.

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