AWIK, TAMAROH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1083/2026

[2026] HKCFI 4888

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1083 OF 2026

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 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 12 June 2026, 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 30 March 2026 (“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/2026/HCAL001083_2026_files/the_Board's_Decision.pdf

2.  The Board found that the applicant had not made out a case for non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 3 February 2026 and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendments

3.  In Form 86, the applicant named the Board and “Non-Refoulement Claims Petition Office” as the putative respondents and “Director of Immigration Headquarter” as the putative interested party, 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 providing administrative and secretariat support to the adjudicators of the Board and should not be named as a respondent at all.

5.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

The applicant’s case

6.  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.

7.  In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be tortured or even killed by her husband, Bagus Kurniawan, due to money dispute.

Disposal on paper

8.  The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

9.  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).

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

11.  She attached an undated handwritten letter in Indonesian to her supporting affidavit/affirmation dated 12 June 2026. The letter was translated by an interpreter engaged by the Court Language Section on 14 August 2026.

12.  In the said letter, the applicant reiterated the ill-treatment she received from her husband, her danger from him, and that she could not return to Indonesia as she had no place to stay, no money and no family who could help her. She indicated that she did not have written evidence of the threats and crimes committed by her husband, as she was in prison and was unable to find proof. She claimed that she had evidence of injury scar(s) on her body. She also mentioned that she requested more time to stay in Hong Kong and when everything got better, she would personally ask to return to Indonesia.

Discussion

13.  First of all, the applicant’s danger from her husband had been duly assessed but rejected by the Board. If she intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

14.  With regards to her claim that she had evidence of injury scar(s) on her body, this court notes that although the Board initially found that her entire claim was premised on unreliable and incredible information which the Board did not accept, the Board further assessed her claim on the basis that her claims as stated in her Non-refoulement Claim Form (“NCF”) were accepted, including that she was assaulted by her husband on multiple occasions. However, the Board still found that the applicant was unable to make out a case for non-refoulement protection.

15.  Thus, even if the applicant could indeed show evidence of injury scar(s) on her body, such evidence is unlikely to advance her case any further.

16.  From what she stated in her handwritten letter, it also seems that the applicant was challenging the Board’s conclusion on the viability of internal relocation for her. However, this court has examined the Board’s reasoning in this aspect as laid out in paragraphs 66 to 70 of the Board’s Decision, and finds that the reasons were fully justified, save that the Board had erroneously stated in paragraph 66 that “it would be very difficult for her to be located by her father upon her return.” (emphasis added), when it should be “by her husband”. Nevertheless, such a mistake does not nullify the Board’s Decision in this regard, as the Board had considered the applicant’s risks against her husband, instead of her father, throughout the Board’s Decision.

17.  Thus, none of the matters that were stated in the applicant’s handwritten letter as aforesaid constitutes a valid ground to challenge the Board’s Decision.

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, despite the fact that the applicant failed to advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

20.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 23 March 2026. The applicant was present via Remote Official Visit System as she was detained at the material time, and was thus given the chance to present her case to the Board.

21.  As can be seen from paragraphs 37 to 60 of the Board’s Decision, the Board questioned the applicant extensively at the Board’s hearing to try to understand her case better. The Board gave full and detailed reasoning in rejecting the applicant’s claims.

22.  In gist, the Board found multiple aspects of the applicant’s accounts to be inherently improbable and contradictory to her written claims. The applicant was evasive in her evidence, and avoided questions by either claiming that she did not know how to explain or she had no explanation. The Board had no doubt that she was not a truthful witness.

23.  Moreover, the Board explicitly stated that even if the information set out in the applicant’s NCF were to be accepted, it would still dismiss the applicant’s appeal/petition. The Board gave its reasons for such a finding in paragraphs 61 to 70 of the Board’s Decision.

24.  The Board found that the applicant’s husband had no real intention to cause her any serious injury. Apart from the applicant’s bare assertion that her husband had threatened to kill her, there was no independent evidence which could corroborate her claim that her husband was indeed minded to kill her if she refused to give him money. The evidence revealed that the applicant had no more contact with her husband since mid-May 2025 until she left Indonesia in July 2025. The Board found it clear that her husband was not minded to track her down so as to inflict serious injury on her or even to kill her. There was also no evidence that her husband had devised any plan or measures to cause her harm, or that he had the resources or power to keep track of her movement.

25.  As aforesaid, the Board had explored the viability of internal relocation for the applicant and found that the applicant could relocate to other places in Indonesia to avoid her fear of risk of harm and to earn a living there.

26.  In its assessment of the applicant’s risks on all the applicable grounds under the USM, the Board found that the applicant’s alleged dispute with her husband was clearly a personal matter and did not fall within the ambit of torture as defined under section 37U(1) of the Immigration Ordinance. The evidence did not indicate that the applicant’s husband intended to cause serious harm to her or to kill her. The applicant’s case had nothing to do with any of the Convention reasons either.

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

28.  Although the Board did not consider state protection for the applicant, it was unnecessary to make findings on the availability of state protection as the Board found that the applicant did not face any real risk of harm from her husband.

29.  The finding of facts relating to a non-refoulement claim, including the assessment of evidence and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

30.  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.

31.  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 applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

32.  For reasons aforesaid, 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