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

HCAL 225/2023

[2026] HKCFI 3018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 225 of 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;          or
	consideration of the documents and the Applicant being absent 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 herein for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 15 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 9 December 2022 (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 20 August 2021 (the “Director’s Decision”), which had rejected her non-refoulement claims on all applicable grounds under the Unified Screening Mechanism (“USM”).

2.  Although the Applicant’s Form 86 contains the reference to the Board’s Decision, it appears that most if not all of the grounds provided in her Affirmation in support of the Leave Application are directed against the Director’s Decision only. As the Applicant had already appealed the Director’s Decision to the Board which was conducted by way of rehearing, the Board’s Decision effectively supersedes the Director’s Decision.[1]  Hence, the Director’s Decision is not a decision which is susceptible to judicial review.

3.  The Applicant did not attend the oral hearing. I have therefore considered the Leave Application in respect of the Board’s Decision based on the materials available before me.[2]

4.  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[3] to which is included below, are also adopted herein.

Discussion

5.  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. [4]

6.  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. [5] As mentioned, most if not all of the grounds provided are directed against the Director’s Decision. They can be summarized as follows:-

(1)  “I do not agree with the Director of Immigration Decision. Director did not consider my claim. I think Director did not see my claim. Any one if on[e] time see my case/claim he must grant.” (“Ground 1”)

(2)  “I think Director had only one job and that is dismissed my claim. I never think this result, even I did not believe when I see Director of Immigration Decision.” (“Ground 2”)

(3)  “I submit[ted] some documents to Director some are my mother language. Immigration did not accept my documents. I requested to officer to give me time to translate, but he did not give.” (“Ground 3”)

7.  As the Director’s Decision is no longer susceptible to judicial review, all of the above grounds directed against the Director’s Decision must be dismissed.

8.  In any event, I have scrutinized the Board’s Decision and come to the view that none of the aforesaid grounds, if directed against the Board, can be established or considered as valid or effective public law grounds.

9.  First, these grounds merely consist of generic, vague and unparticularized assertions using selected keywords and phrases 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.[6]

10.  In particular, Ground 3 is obviously untrue and must be rejected. It would appear from the Director’s Decision that the Applicant was initially assisted by the Duty Lawyer Service. The Applicant did not submit any documentary evidence to the Board in support of her application (see: Paragraph 12 of the Board’s Decision).

11.  Second, the Board was acutely aware of the Applicant’s claim that she would face risk of serious harm if she was to be returned to Indonesia because she had been ill-treated by her husband by reason of some debt problems. Having considered and assessed the material facts and evidence of the Applicant’s claim including her oral evidence as well as the relevant COI materials, the Board rejected her factual account entirely. In other words, the Board did not accept that the Applicant’s husband had inflicted violence on her and/or that the husband had incurred the 2 respective debts with the Lenders (see: Paragraphs 22 and 45 of the Board’s Decision). The Board was therefore entitled to find that (1) there was no reliable evidence that the Applicant had a well-founded fear of ill-treatment that is of a sufficiently grave nature; (2) there was reasonably sufficient state protection and (3) internal relocation would be a viable option (see: Paragraph 86 of the Board’s Decision).

12.  It follows that the remaining grounds have 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.

13.  Third, 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

14.  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.[7]  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