MARYATI BT WARSIM KASWIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 747/2023

[2026] HKCFI 4272

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 747 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 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 17 May 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 May 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/HCAL000747_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”). Hence, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 6 October 2021 and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendments

3.  In Form 86, the applicant named “Torture Claims Appeal Board non-reFuLement Claims Petition Office” as the putative respondent and “TO Torture Claims Appeal Board non-reFulement Claims Petition Office” as the putative interested party.

4.  In fact, only the Board should be named as the putative respondent and the Director should be named as the putative interested party.

5.  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 party at all.

6.  This court therefore 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

7.  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.

8.  In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed or killed by her stepfather due to her refusal to give him money.

Oral hearing

9.  The applicant requested for an oral hearing of the Leave Application, and her case was heard on 16 July 2026.

10.  When this court asked the applicant for the grounds of her intended judicial review, she merely replied that she was still afraid of going back to Indonesia.

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 identify any ground for the intended judicial review in Form 86, nor in her supporting affirmation dated 17 May 2023. In the said affirmation, she only stated that she did not want to go back to Indonesia, her life was in danger, her stepfather wanted to kill her, he always beat her when she was in Indonesia, and she asked this court to save her life and let her live in Hong Kong.

13.  As aforesaid, at the oral hearing, the applicant only said that she was still afraid of going back to Indonesia.

Discussion

14.  First of all, the applicant’s danger from the stepfather in Indonesia 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.

15.  Her wish to remain in Hong Kong is not a valid ground for judicial review either.

16.  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).

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

18.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 28 March 2023. The applicant was present at the hearing. Thus, the applicant did have a chance to present her case to the Board in person.

19.  As can be seen from the Board’s Decision, the Board had given a detailed analysis of the applicant’s claims and its reasoning in rejecting the applicant’s claim for non-refoulement protection.

20.  The Board had laid out its assessment of the credibility of applicant in paragraphs 51 to 54 of the Board’s Decision, and it is not necessary to repeat the same here. In gist, the Board found the applicant’s evidence to be wholly unreliable, as there were material inconsistencies and omissions between her Non-refoulement Claim Form and record of interview, which she adopted at the Board’s hearing, and her evidence at the hearing. Moreover, the applicant’s explanations for the inconsistencies were unconvincing.

21.  The Board found that the applicant was not a witness of truth. The Board was of the view that her evidence of being beaten and threatened to be killed by her stepfather over the course of many years had been fabricated. Apart from the fact that the applicant was a national of Indonesia, the Board concluded that the applicant had not established any of the facts asserted.

22.  Given its findings as summarised above, the Board found nothing in the background information which suggested that the applicant, as an Indonesian female, by that status alone, faced a real risk of harm at all.

23.  Thus, the Board did not consider that the applicant would face a real risk of any of the proscribed forms of harm should she return to Indonesia. The Board rejected the applicant’s claims for non-refoulement protection in Hong Kong.

24.  Although the Board did not consider state protection and internal relocation, it was unnecessary to make findings on the availability of state protection as the Board found the applicant was not at a real risk of any of the proscribed forms of harm.

25.  As to internal relocation, 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).

26.  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.

27.  The finding of facts, including the assessment of evidence, country of origin information and risk of harm, was primarily within the realm of the Board. The Board was entitled to make its own decision. The applicant’s alleged danger from her stepfather had been fully considered but rejected by the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

28.  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.

29.  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

30.  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