CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1821 of 2023
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BETWEEN
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Asi Yuswati |
Applicant |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K. W. Lung:
Leave to apply for Judicial Review be refused.
Observation for the Applicant:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 29 September 2023 of the Torture Claims Appeal Board (“the Board’s Decision).
2. The applicant asked for a hearing. She appeared before the Court on 4 February 2026. She confirmed that she had told her full story to the Board. She further admitted that the Board’s Decision was not wrong.
3. The Board’s Decision is in Chinese. This Form CALL-1 is in English because the applicant submitted her affirmation in English.
The applicant
4. The applicant is a national of Indonesia. She is an illegal immigrant. She lodged a non-refoulement claim on the basis that, if refouled, she will be harmed or killed by her creditor because she was unable to repay her loan.
5. Details of her claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001821_2023_files/the_Board's_Decision.pdf
The Director’s Decision
6. The Director considered the applicant’s claim in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);
c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and
d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
7. By way of the Notice of Decision dated 16 November 2022 (“Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 24 July 2023, the Board conducted an oral hearing for her. The applicant had given evidence and answered the Board’s questions.
9. Having considered the evidence, the Board made the findings below.
(1) There was no evidence that the creditor had harmed her or her family. It appeared that the creditor was only attempting to press her for repayment of her loan, not to harm or kill her. [44]-[45]
(2) The state was not involved in this matter. It is only a personal monetary dispute between the creditor and herself. [57]
(3) State protection will be available if she returns to Indonesia. [76]
(4) Internal relocation is viable. [114]
10. For the above reasons, the Board dismissed her appeal and affirmed the Director’s Decision.
Application for leave to apply for judicial review of the Board’s Decision
11. The applicant has filed Form 86 dated 11 October 2023 for leave to apply for judicial review of the Board’s Decision.
12. In support of her application, the applicant said that the adjudicator did not consider her case well; that he did not give her time to submit further documents and prepare translation of her documents; that she was unable to understand Cantonese, but translation was not available.
DISCUSSION
13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
14. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13. (1) … …Assessment of evidence and COI materials and 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 errors of law or procedural unfairness or irrationality in the decision of the Board.”
16. As the applicant admitted that the Board’s Decision is not wrong, her grounds under paragraph 12 have become insignificant. In any event, those grounds are her bare assertions without any evidence in support. The applicant has raised no valid ground to challenge the Board’s Decision.
17. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.
DISPOSITION
18. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 3rd day of March 2026
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(Allen LEE)
for Registrar, High Court
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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
Notes for the Applicants:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
On 3/3/2026
Asi Yuswati
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 3/3/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 21193
Director of Immigration
Putative Interested Party’s ref. no.:
RBCL 1045/22
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1