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

HCAL 621/2021

[2026] HKCFI 213

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 621 OF 2021

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

1.  Form 86 be amended, naming only the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office as the Putative Respondent and the 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 a Form 86 filed on 4 May 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 19 March 2021 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 4 August 2020 (the “DOI Decision”).

2.  I amend the Form 86 on my own motion to name only the TCAB as the putative respondent and the DOI as the putative interested party.

3.  The Applicant requested for a hearing of this application and she attended the same.  When asked, she said that she had nothing to add.

Background

4.  The Applicant is a national of Indonesia.  The Applicant’s case is based upon her fear that if she were to return to Indonesia, she would be subject to ill-treatment or be killed by a loan shark.  The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1].  I shall therefore not repeat them.  Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

Discussion

5.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

6.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  A finding of fact is exclusively within the realm of the TCAB, and this 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 TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.  The Applicant did not state any grounds on which the relief is sought, and hence did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

9.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [47-59]. In particular, the TCAB came to the following conclusion, “On the whole I do not find the Appellant to be telling the truth.  I find that her case was both vague and unbelievable in both her oral evidence and her written case.  However the alleged loan from the Creditor is not substantiated.  All the other matters including the stated threats and attack by the Creditor are not accepted.  She might have somehow injured her calf but that did not have anything to do with the alleged assault by the Creditor’s people.  Furthermore, even if the loan did exist as alleged, the dispute and matters relating thereto were and are confined to her local area.  There is nothing in the evidence that suggests that the government of Indonesia would participate and cause harm to or track her down so as to harm her.” [40] The TCAB’s conclusion cannot be faulted, given the complete lack of supporting documents [30] and her overall evasiveness and unreliability when giving her evidence [32-39].  Further, it is clear that her problem was localised, and there was no evidence that the loan shark had any relevant political or government connections [45, 46].  Thus, the TCAB was plainly correct in concluding that the Applicant would be afforded state protection [45, 46] and it would be reasonable to expect her to relocate [60-62].

10.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.  The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review 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