INDAH PUJI ASTUTI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1352/2023

[2026] HKCFI 2888

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1352 OF 2023

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.  The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

2.  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 4 August 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 26 July 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/HCAL001352_2023_files/the_Board's_Decision.pdf

2.  The Board rejected the applicant’s non-refoulement claim as not substantiated on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 19 August 2022 (“the Director’s Decision”), which rejected her non-refoulement claim.

The applicant’s case

3.  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.

4.  In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed or killed by her husband and her husband’s moneylenders as her husband had been violent to her and she had to pay the very large debts that her husband owed to his moneylenders.

Withdrawal of the Leave Application

5.  Before the Leave Application was dealt with, the applicant filed an ex-parte application by way of her affirmation dated 20 April 2026 to cancel all her non-refoulement claims including the Leave Application.

6.  However, she did not state that it was safe for her to go back to her home country, or that her problem had been resolved.

7.  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 or any oral hearing of the Leave Application even though she had previously requested one.

8.  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.”

9.  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

10.  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).

11.  The applicant did not advance any ground for her intended judicial review in her Form 86.

12.  In her supporting affirmation dated 4 August 2023, apart from stating that she had life threat in Indonesia, the applicant stated 6 grounds for the intended judicial review under the heading “GROUNDS FOR JUDICIAL REVIEW”, which are summarised as follows:-

(1)  the adjudicator did not consider her claim;

(2)  the adjudicator did not accept her documents as the documents were in her mother language;

(3)  the officer refused to give her time to translate the documents because he had no time;

(4)  the translator did not help her at all and became angry if the applicant did not understand;

(5)  the interpreter asked her not to take long time for interview as he had another job; and

(6)  she asked the court to help her and save her life.

Discussion

13.  First of all, the applicant’s danger in her home country 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 an application for judicial review.

14.  As to the matters that were stated as “GROUNDS FOR JUDICIAL REVIEW”, all the grounds (except ground (6) which is not a ground at all) were asserted without any specificity. Many applicants in similar applications used them like a template without any regard to their own cases. The applicant is no exception.

15.  She did not state: (1) how the adjudicator did not consider her claim; (2) which part(s) of her claim was not considered; (3) what documents she intended to submit were rejected as they were not translated; (4) how the interpreter or translator’s attitude had prejudiced her; and (5) what she wanted to tell the Board was not presented because of the attitude of the interpreter or translator.

16.  The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.

17.  Thus, the general assertions that were contained in the applicant’s affirmation cannot help her at all.

18.  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).

19.  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.

20.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 24 April 2023. The applicant was present and was thus given the opportunity to present her case to the Board in person.

21.  The Board laid out its assessment of the applicant’s claimed fear of the loan sharks and of her husband in paragraphs 30 to 37 and paragraphs 38 to 48 of the Board’s Decision respectively.

22.  In gist, in respect of the applicant’s claims regarding the loan sharks, the Board rejected the applicant’s evidence that (1) the loans were obtained in her name; (2) the loans issued to her husband were obtained using the applicant’s ID card; and (3) the loan sharks contacted the applicant several times before she came to Hong Kong or called her in Hong Kong.

23.  Nevertheless, for the purpose of the decision, the Board extended the benefit of the doubt to the applicant and accepted that her husband owed money to the loan sharks, and that in December 2019, the applicant once gave jewelry to the loan sharks and later in the same month, the loan sharks took her new motorcycle in partial payment of her husband’s debts.

24.  Nevertheless, the Board rejected that the applicant owed any money to the loan sharks in her own name. The Board considered that there was only a remote risk and therefore not a real risk that the applicant would face any of the proscribed harm from the loan sharks if she was refouled to Indonesia.

25.  With regards to the applicant’s claimed threats from her husband, the Board considered that the past harm she endured from her husband was not harm so serious to meet the very high threshold of the minimum level of seriousness to be considered as a proscribed harm under the USM. The Board considered it more likely than not that with the passage of time, her husband’s motivation to harm her would have reduced, not escalated.

26.  In reaching this conclusion, the Board was mindful of the absence of any credible contact between the applicant’s husband and her family since May 2022. The Board rejected the applicant’s evidence that her neighbour told her about her husband looking for her as a piece of evidence that was invented during the Board’s hearing. The Board also rejected that the applicant had no contact with her family. The Board found that her husband never attempted to go to the applicant’s island to see her, let alone harm her, between her leaving the marital home in January 2020 and her coming to Hong Kong in November 2020. The Board further considered the threat her husband made in May 2022 about taking their son back was an empty one, and he had not even attempted to contact the applicant’s brother further, let alone otherwise harm their son.

27.  Thus, the Board considered that there was only a remote or speculative risk and therefore not a real risk that the applicant would face any proscribed harm from her husband if she was refouled to Indonesia and resumed living with her parents.

28.  As the Board found on the evidence before it that the applicant did not face a real risk of any of the proscribed harm under the USM if she was refouled to Indonesia, the Board did not make findings on the level of state protection the applicant could receive from the authorities in Indonesia.

29.  Nevertheless, the Board had discussed in length with the applicant at the Board’s hearing about the viability of internal relocation to avoid any perceived harm. As can be seen in paragraphs 49 to 50 of the Board’s Decision, the Board considered it reasonable and not unduly harsh for the applicant to relocate to Jakarta, where there was only a remote risk of her ever bumping into her husband among the tens of millions of people living there.

30.  Thus, the Board concluded that the applicant failed to establish a case for non-refoulement protection in Hong Kong.

31.  The finding of facts including the assessment of evidence and risk of harm was primarily within the realm of the Board in dealing with her appeal/petition. The applicant’s alleged danger in her home country had been duly assessed by the Board. The Board was entitled to reach its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

32.  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.

33.  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

34.  For reasons aforesaid, the application for leave to withdraw the Leave Application is refused and the Leave Application 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