SINTA KRISTIKAWATI v. TORTURE CLAIMS APPEAL BOARD

HCAL 2065/2023

[2025] HKCFI 4939

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2065 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 in open court;

1.  On this court’s own motion, the name of the putative interested party be amended to “Director of Immigration”.

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

3.  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 21 November 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 9 November 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/HCAL002065_2023_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). The Board decided to dismiss the applicant’s appeal/petition and confirm the decision of the Director of Immigration (“the Director”) dated 25 November 2021, which rejected the applicant’s non-refoulement claim.

Amendment

3.  In Form 86, the applicant named the Director as the putative interested party but spelt its name wrong.

4.  Thus, on this court’s own motion, the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

5.  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.

6.  In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she feared harm from a moneylender named Lendra as she and her husband had borrowed a sum equivalent to HK$100,000 from Lendra and was unable to repay the loan. Lendra and her subordinates had attacked the applicant’s husband once with wooden rods, which resulted in the husband’s broken shoulder. The husband then left home and disappeared.

Withdrawal of the Leave Application

7.  By way of her affirmation dated 9 June 2025, the applicant made an ex parte application to withdraw the Leave Application. In the said affirmation, the applicant stated that:-

“I WANT TO GO BACK TO MY COUNTRY SO I WANT TO WITHDRAW MY JUDICIAL REVIEW I WILL GO HOME AS SOON AS POSSIBLE”

8.  There is no evidence to show that the applicant made the above 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 for the Leave Application even though she had previously requested one.

9.  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.”

10.  Thus, it is right for this court to deal with the Leave Application instead of leaving the action at large. The applicant’s application to withdraw the Leave Application is therefore refused, and this court will proceed to consider the merits of the Leave Application.

Grounds for judicial review

11.  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).

12.  The applicant did not advance any ground for her intended judicial review in Form 86, but she annexed a document titled “GROUNDS” to her supporting affirmation dated 21 November 2023, which advanced some grounds for her intended judicial review. The grounds contained therein are summarised as follows:-

(1)  The Board did not truly consider her claim.

(2)  The duty lawyer at the interview did not help her at all and was even sleeping when the interpreter wrote down her statement.

(3)  The adjudicator dismissed her claim but showed some bad arguments, and the adjudicator was prepared to dismiss her claim before her oral hearing.

(4)  The adjudicator was not neutral and did not find any reason to grant her claim.

Discussion

13.  First of all, the assertions put forward by the applicant are all very vague, general, and without particulars.

14.  In ground (1), she failed to state how the Board did not truly consider her claim, or what aspects of her claim were not considered or truly considered.

15.  In ground (2), even if what she stated about the lawyer who assisted her at the interview were true, the applicant did not specify how the lawyer’s failure in assisting her had prejudiced her. In any event, in considering the appeal/petition by the applicant, the Board arranged an oral hearing on 16 September 2022 and the applicant was present. Thus, the applicant did have the opportunity to present her case to the Board in person and she could have put forward her case properly to the Board for its consideration.

16.  The applicant failed to give details as to what “bad arguments” were given by the Board to dismiss her claim, nor how she knew that the adjudicator was prepared to dismiss her claim before her oral hearing as alleged in her ground (3).

17.  It does not help the applicant by simply saying that the adjudicator was not neutral in ground (4) without specifying how the Board was not neutral or why she believed it was not.

18.  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”.

19.  Thus, the general assertions put forward by the applicant above cannot help the applicant at all. This court finds that none of the grounds asserted by the applicant constitutes a valid ground to challenge the Board’s Decision.

20.  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).

21.  Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

22.  As can be seen in the Board’s Decision, the Board did give detailed reasoning as to why it concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

23.  Although the Board accepted that the applicant and her husband might have borrowed money from a moneylender, the fact that there might be an outstanding loan owed by the applicant did not automatically render her the right not to be refouled to her home country.

24.  There was no evidence to show that the government or any public and/or official authority or official was involved in the applicant’s alleged dispute with Lendra. There was also no credible evidence to show that Lendra was prepared to inflict any serious harm on the applicant. Lendra had only telephoned her when seeking repayment of the money. There was no personal contact and Lendra had never caused any harm to the applicant. Even the attack on her husband was a hearsay. Her dispute with Lendra was purely a private one arising from her non-repayment of a loan. None of the reasons for persecution, namely race, religion, nationality, membership of a particular social group or political opinion was present.

25.  The Board also found that whilst corruption did exist in Indonesia, the government had been taking measures to deal with the issue. There was a want of credible evidence to show that the police in the area where the applicant used to live were and would be corrupted and refused to offer help to the applicant. The Board was satisfied that state protection was available in Indonesia, and if needed, the applicant could have sought assistance and protection.

26.  Although the Board did not consider the viability of internal relocation for the applicant, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755).

27.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

28.  The assessment of evidence and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

29.  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.

30.  Moreover, as the applicant had confirmed by her affirmation dated 9 June 2025 that she wanted to go back to her home country and she wanted to withdraw her judicial review, it is clear that she no longer needs non-refoulement protection.

31.  It is therefore otiose and pointless to grant leave to the applicant to proceed with the intended judicial review, and hence the Leave Application ought to be dismissed.

32.  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

33.  For reasons aforesaid, the application 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