SUKARNO DESY TRIOLITA DEWI v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 56/2023

[2026] HKCFI 3006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 56 of 2023

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of documents only;          or
	consideration of the documents and oral submissions by the Applicant 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 for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 16 January 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 16 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 6 January 2022 (the “Director’s Decision”), which had rejected her non-refoulement claims on all applicable grounds under the Unified Screening Mechanism (“USM”).

2.  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[1] to which is included below, are also adopted herein.

3.  The Applicant attended the oral hearing and informed the Court that she had already started a new life in Hong Kong as she got married here two years ago.

Discussion

4.  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.[2]

5.  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.[3] The Applicant’s grounds can be summarized as follows:-

(1)  “Adjudicator did not consider my claim. Adjudicator directly dismissed. He did not even take time or did not think about my life.” (“Ground 1”)

(2)  “I had some documents but all in my mother language. I submitted all but Adjudicator did not accept because he could not understand.” (“Ground 2”)

(3)  “I request him to give me some time to translate in English of my all documents and I too took some preparation but my officer had no time.” (“Ground 3”)

(4)  “Translator did not help me at all. If I did not understand he became angry.” (“Ground 4”)

(5)  “Interpreter asked me to not take long time for interview as he had another job.” (“Ground 5”)

(6)  “Please help me and safe my life.” (“Ground 6”)

6.  I have scrutinized the Board’s Decision carefully and come to the view that none of the aforesaid Grounds can be established or considered as valid or effective public law grounds.

7.  First, most if not all of the grounds merely consist of generic, vague and/or unparticularized assertions 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.[4]

8.  Ground 2 to Ground 5 are untrue and must be rejected:-

(1)  The Applicant was legally represented in her initial application and at her interview with the Immigration Department (see: Paragraph 2 of the Board’s Decision). It would appear from the Director’s Decision that she apparently had no difficulty in providing clarifications at the screening interview and confirmed that apart from what she had stated on or before the said interview, she did not have other information or documents to submit to support her claim.

(2)  The Applicant attended the oral hearing before the Board without legal representation. There was however no indication of any difficulty in giving evidence and/or answering the questions raised by the Board. She also confirmed to the Board that she did not wish to alter or amend anything she had said in those documents submitted to the Immigration Department (see: Paragraph 17 of the Board’s Decision).

9.  Second, the Board was acutely aware of the Applicant’s claim that she would be ill-treated and killed by her creditor i.e. Slamet and/or his men due to her unsettled loan if she was to be returned to Indonesia. The Board duly considered the evidence and submissions made by the parties, the Applicant’s oral evidence and the relevant COI materials before reaching the findings that the Applicant’s claim regarding her fear for serious harm by Slamet had no credibility at all. The Board was therefore of the view that (1) such a claim was not made out and the Applicant had failed to show a genuine and substantial risk of being subjected to the claimed ill-treatment should she be expelled from Hong Kong (see: Paragraphs 35 to 43 of the Board’s Decision); and (2) the Applicant would not be in danger of being subjected to torture should she be returned to Indonesia on the basis of the general security situation in Indonesia (see: Paragraph 47 of the Board’s Decision).

10.  It follows that Ground 1 has no merit and must be rejected. The Board did properly and duly consider the Applicant’s claim with adequate reasons provided. I t was simply entitled to come to the conclusions it did and reject the Applicant’s claim.

11.  Third, Ground 6 has no substance. Likewise, the Applicant’s latest circumstances regarding her marriage in Hong Kong also do not add substance to the Leave Application.[5]

12.  Fourth, 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

13.  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.[6] 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