VENI PRAMATA SETIAWATI v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 192/2023

[2026] HKCFI 3013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 192 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 10 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 30 January 2023 (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 28 September 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. She informed the Court that she has just enrolled her 2-year-old child to a school in Hong Kong and she does not wish to go back to her home country.

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]  The Applicant’s grounds can be summarized as follows: -

(1)  “The Adjudicator did not consider my claim. Adjudicator directly dismissed. He did not even take time or did not think about my life.” (“Ground 1”)

(2)  “I had some documents but all in my mother language. I submitted all but Adjudicator did not accept because he could not understand.” (“Ground 2”)

(3)  “I request him to give me some time to translate in English of my all documents and I too took some preparation but my officer had no time. (“Ground 3”)

(4)  “Translator did not help me at all. If I did not understand he became angry.” (“Ground 4”)

(5)  “Interpreter asked me to not take long time for interview as he had another job. (“Ground 5”)

(6)  “Please help me and safe my life.” (“Ground 6”)

6.  I have scrutinized the Board’s Decision carefully and come to the view that none of the aforesaid Grounds can be established or considered as valid or effective public law grounds.

7.  First, most if not all of the grounds merely consist of generic, vague and/or unparticularized assertions 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.[4]

8.  Ground 2 to Ground 5 are obviously untrue and must be rejected: -

(1)  The Applicant lodged her written signification and NCF and attended the screening interview. She was represented by a lawyer assigned by the PSO. She was able to clarify the details of her non-refoulement claim and provided further supporting information in response to questions from an immigration officer acting on behalf of the Director of Immigration (see: Paragraphs 8 and 28 of the Board’s Decision).

(2)  The Applicant attended the oral hearing before the Board with the assistance of an interpreter. Both of them confirmed to the Board that they had no difficulties understanding each other. The Applicant also confirmed under oath that the information in her claim documents was complete, true and correct. She also informed the Board that she did not wish to testify and/or to provide any further evidence to the Board (see: Paragraphs 69 and 70 of the Board’s Decision).

9.  Second, the Board was acutely aware of the Applicant’s claim that if she was to be refouled to Indonesia, she would be at risk of the proscribed harm there from her husband (and the loan shark), on account of her failure to repay the loan from the loan shark, to whom her husband, without her knowledge or consent, had provided her name as guarantor for the repayment of the loan. The Board had duly considered the evidence and submissions made by the parties including the documents put forward by the Applicant as well as the COI materials before reaching the findings that (1) the risk that she might suffer serious harm at the hands of her husband and/or the loan shark was low and fell far short of the standard required to warrant international protection (see: Paragraphs 90 and 103 of the Board’s Decision ); (2) there would be adequate state protection and (3) internal relocation would not cause undue hardship or otherwise be unreasonable (see: Paragraphs 96 and 102 of the Board’s Decision).

10.  It follows that Ground 1 has no merit and 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.

11.  Third, Ground 6 has no substance. Likewise, the Applicant’s latest circumstances of having enrolled her child to a school in Hong Kong also add no substance to the Leave Application. [5]

Fourth, 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

12.  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.[6]  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