|
HCAL 980/2023
[2026] HKCFI 4308
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 980 OF 2023
|
BETWEEN
|
| |
Ika Ariana |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board |
Putative |
| |
|
Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 1 June 2023”.
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 20 June 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions which were described as follows:-
“1. Determination of Appeal/Petition with a hearing by the Torture Claim Appeal Board Dated 01/06/2023
2. Notice of Decision Issued by the Director Of Immigration Dated 15/JUNE/2022”
2. The Torture Claims Appeal Board (“the Board”) made a decision dated 1 June 2023 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 15 June 2022 (“the Director’s Decision”). At the oral hearing of the Leave Application on 16 July 2026, this court explained to the applicant that the Director’s Decision had been superseded by the Board’s Decision (see Re Moshsin Ali [2018] HKCA 549). The applicant then confirmed that only the Board’s Decision should be the subject matter of the Leave Application.
3. The Board’s Decision can be viewed in the following hyperlink:
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000980_2023_files/the_Board's_Decision.pdf
4. The Board rejected the applicant’s claim for non-refoulement protection in Hong Kong on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board dismissed the applicant’s appeal/petition against the Director’s Decision and confirmed the same, which rejected the applicant’s non-refoulement claim.
Amendments
5. In Form 86, the applicant named “Torture Claim Appeal Board/Non-Refoulement Claims Petition Office” and the Director as both the putative respondents and the putative interested parties. As the applicant confirmed that the Board’s Decision was the sole subject matter in the Leave Application, only the Board should be named as the putative respondent and the Director should be named as the putative interested party.
6. 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.
7. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration” and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 1 June 2023”.
The applicant’s case
8. 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.
9. In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed or even killed by her husband named Khoirul Anam due to her affair with a man named Alan.
Oral hearing
10. The applicant requested for an oral hearing and her case was heard on 16 July 2026. The applicant confirmed that she would rely on the document with the title “Grounds for Petition/Appeal in the Torture Claim Appeal Board for Ika Ariana”, which was annexed to her supporting affirmation dated 20 June 2023, as her grounds for the intended judicial review.
11. When this court asked the applicant to elaborate on the grounds stated in the said document, the applicant said that her life was in danger because of her mistake, she was still threatened by her family, her husband and the community, she changed her religion and if she went back, she would be in danger, and hence she decided not to go back.
12. After the hearing, the applicant submitted a handwritten letter dated 16 July 2026 containing more grounds for her intended judicial review.
Grounds for judicial review
13. 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).
14. The applicant did not advance any grounds for her intended judicial review in Form 86. In the said document annexed to her supporting affirmation, the applicant mentioned a number of grounds as summarized below:-
(1) There are substantial grounds for believing that the applicant would be in danger of being subjected to torture and death, if returned to her country of origin.
(2) The applicant’s application for refugee status was rejected for the main reason that her claim lacked credibility.
(3) The adjudicator reviewed the Director’s Decision on papers without a fair hearing and the applicant was unrepresented.
(4) Procedural fairness required that there should be a fair oral hearing with representation.
(5) The applicant wanted to comment on the delay occasioned by the Leave Application, which was made out of time. She wished to be addressed at the substantive hearing of the Leave Application with representation about the time taken to process the matter and to institute these proceedings.
(6) The applicant’s torture claim was based on several merits, the first of which was her fear of being killed or tortured if she returned to her country, which was more frightening than actually getting physically harmed. West Bengal is a lawless state, and the applicant was sandwiched on both sides.
(7) The adjudicator failed to meet the high standard of procedural fairness in that:
(a) If the adjudicator sought to challenge the applicant’s credibility, a fair oral hearing with representation was warranted; and
(b) The adjudicator took account of irrelevant considerations in assessing the applicant’s claim.
(8) The adjudicator Siu Chak Yu gave no proper reasons for the decision, was satisfied that the case could be determined without a fair oral hearing and the applicant being unrepresented. Although the adjudicator set out the two matters that the applicant advanced in support of her claim, it did not feature in the analysis in concluding that the applicant’s experiences did not amount to torture and that there were no substantial grounds that she would be subjected to torture if she was returned to her home country.
(9) The Director had not taken all the COI[1] material from the hearing bundle, had significantly relied on source of news which was not officially recognized, or was simply hearsay, and had also relied on some outdated cases. The lack of credible source of information had resulted in the Director making groundless speculations. Having rejected the basis of the applicant’s claim, the adjudicator, Ms Jane Curzon Lo, commented that there was no genuine threat, the applicant could live in other places and internal relocation was a viable option.
(10) The relevant principles in relation to the determination of torture claims had been extensively canvassed in the leading authority of Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 186 and more recently in TK v Michael C Jenkins and Anor [2013] 1 HKC 526, ST v Betty Kwan and Anor [2013] 3 HKC 86 and AM v Director of Immigration and Anor, HCAL 102/2013 (unreported).
(11) The question of whether or not an oral hearing should be conducted by an adjudicator in assessing the petition had increasingly become an issue in judicial review proceedings.
(12) The Supreme Court decision of Osborn v The Parole Board [2013] UKSC 61 was an important decision, especially when addressing the issue of whether or not procedural fairness required a fair oral hearing, and if it did, in what circumstances.
(13) The adjudicator Siu Chak Yu was inconsiderate in her decision and had failed miserably.
15. As aforesaid, the applicant did not elaborate on any of the above at the oral hearing before this court. She only said that her life was in danger because of her mistake, she was still threatened by her family, her husband and the community, she changed her religion and if she went back, she would be in danger, and hence she decided not to go back.
16. In the handwritten letter dated 16 July 2026, which was submitted after the hearing, the applicant mentioned some other grounds as summarized below:-
(1) There were lots of discrepancies in the Board’s Decision.
(2) The applicant is a Christian now and her life would be in danger in Indonesia. Her own family and her husband wanted to kill her as she had been converted to Christianity and Indonesia is an Islamic country. The applicant had good fellowship with her Christian brethren in Hong Kong.
(3) The adjudicator failed to meet the high standard of procedural fairness required.
(4) In paragraph 26 of the Board’s Decision, the Board found that the applicant’s delay in making her non-refoulement claim damaged her credibility, but the applicant could only make her non-refoulement claim in August 2019 because she was working in Hong Kong and had no threat whatsoever. She only went to Bali for a short time for vacation and immediately came back to Hong Kong to work.
(5) The applicant could relocate to another country but could not go back to Indonesia. She needed time to relocate to another country, but Hong Kong is very safe for her.
(6) The applicant has a clean record in Hong Kong and does not pose any security risk to Hong Kong.
Discussion
17. First of all, some of the contents of the document titled “Grounds for Petition/Appeal in the Torture Claim Appeal Board for Ika Ariana” were clearly unrelated to the applicant’s case.
18. The applicant mentioned in Ground (6) (as summarized in paragraph 14 above) that West Bengal is a lawless state, and the applicant was sandwiched on both sides. However, West Bengal is in India and the applicant is an Indonesian. Her case was never about any risk in West Bengal at all.
19. The applicant also mentioned in Ground (6) (as summarized in paragraph 14 above) that her case had several merits, one of which was that her fear of being killed or tortured was more frightening than actually getting physically harmed, but the Board had already found her not telling the truth and she had exaggerated her case about the alleged threats from her husband (see paragraph 37 of the Board’s Decision). This court finds nothing wrong or unreasonable in the Board’s findings in this regard. Thus, her alleged fear was not established.
20. The applicant’s complaint against Ms Jane Curzon Lo in Ground (9) (as summarized in paragraph 14 above) was completely unfounded, as Ms Lo was not even the adjudicator of the Board who determined the applicant’s appeal/petition.
21. Moreover, the applicant’s complaints against the Director in Ground (9) (as summarized in paragraph 14 above) could be simply ignored, as the Leave Application concerns only the Board’s Decision.
22. Grounds (3), (4), (7)(a), (8), (11) and (12) (as summarized in paragraph 14 above) all concern the applicant’s complaint about the absence of an oral hearing before the Board. However, in assessing the applicant’s appeal/petition, the Board held an oral hearing on 22 May 2023 and the applicant was present. She was clearly given an opportunity to present her case to the Board at an oral hearing in person.
23. In the said grounds, the applicant also complained that there was no legal representation for her. However, this court notes that the applicant was in fact assisted by a lawyer from the Duty Lawyer Service in the first tier of the screening process when her case was assessed by the Director. The Court of Appeal has repeatedly emphasised that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37). Hence, there is no substance in this allegation.
24. In Ground (5) (as summarized in paragraph 14 above), the applicant wanted to comment on her delay in making the Leave Application at an oral hearing. The applicant was in fact not late in making the Leave Application. The Board’s Decision was dated 1 June 2023 and she filed the Leave Application on 20 June 2023, well within the time limit. Thus, there was no such need to hear her comment on her alleged delay at all.
25. In Ground (10) (as summarized in paragraph 14 above), the applicant stated some benchmark cases in relation to non-refoulement claims. However, she did not state how the principles laid down in those cases were related to her Leave Application. It is clear that she just copied those cases without any regard to her own case.
26. The applicant mentioned in Ground (7)(b) (as summarized in paragraph 14 above) that the adjudicator took account of irrelevant considerations in assessing the applicant’s claim. However, the applicant failed to specify what irrelevant considerations had the Board took into account.
27. Similarly, she mentioned in Ground (13) (as summarized in paragraph 14 above) that the adjudicator Siu Chak Yu was inconsiderate in her decision and had failed miserably, but such complaint was advanced without any particulars.
28. 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”.
29. Thus, the general assertions put forward by the applicant cannot help her at all.
30. Likewise, in Grounds (1) and (2) (as summarized in paragraph 14 above) the applicant simply alleged that there were substantial grounds for believing that she would be in danger and her claim was rejected mainly due to lack of credibility, but she gave no particulars as to how or why the Board was wrong in rejecting her claim.
31. The Board had in fact given detailed analysis and reasons for finding the applicant not telling the truth in paragraphs 30 to 37 of the Board’s Decision. The Board had also considered the applicant’s alleged danger in details in paragraphs 38 to 56 of the Board’s Decision. The lack of particulars in such allegations cannot help the applicant at all. In any event, this court finds nothing wrong or unreasonable for the Board to find that the applicant was not telling the truth and to reject her non-refoulement claim.
32. The same principles also apply to the applicant’s Grounds (1) and (3) advanced in her handwritten letter dated 16 July 2026 (as summarized in paragraph 16 above) in which she alleged that there were lots of discrepancies in the Board’s Decision and that the adjudicator failed to meet the high standard of procedural fairness required. There is simply no substance in these general allegations that were advanced without particulars.
33. In Ground (4) of the said letter (as summarized in paragraph 16 above), the applicant tried to explain the delay in making her non-refoulement claim. However, as stated in paragraph 26 of the Board’s Decision, the Board was fully entitled under section 37ZD of the Immigration Ordinance to take the applicant’s delay in making her non-refoulement claim (which was made only after her arrest) into account when considering the applicant’s credibility. If the applicant considered that she had justified reasons for the delay, she could and should have explained to the Board during the Board’s assessment of her appeal/petition.
34. Ground (2) of the said letter (as summarized in paragraph 16 above) was all about the applicant’s alleged danger after her conversion to Christianity. The applicant also made the same assertion at the oral hearing before this court.
35. However, the applicant’s alleged danger arising from her conversion to Christianity was not presented to the Board for assessment. The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.
36. Thus, the applicant cannot rely on matters not raised before the Board as her grounds for judicial review. This court will not take on the role of the primary decision-makers and re-assess her non-refoulement claim.
37. In Ground (5) of the said letter (as summarized in paragraph 16 above), the applicant alleged that she could not go back to Indonesia, but she could go to another country. However, the Board found that the applicant could relocate to other places in Indonesia as elaborated in paragraphs 22 to 24 of the Director’s Decision (see paragraphs 57 to 59 of the Board’s Decision). The applicant did not give any particulars as to why she could not relocate internally in Indonesia. The applicant’s bare allegation in this regard cannot help her. This court also finds nothing wrong or unreasonable in Board’s Decision regarding internal relocation for the applicant.
38. The remaining Ground (6) of the said letter (as summarized in paragraph 16 above), namely that she has a clean record and would not pose any security risks to Hong Kong, is simply irrelevant in the Leave Application and cannot be regarded as a valid ground to challenge the Board’s Decision.
39. Thus, none of the matters that were advanced by the applicant in the document annexed to her supporting affirmation and her handwritten letter dated 16 July 2026, as well as what she said at the oral hearing before this court, constitutes any valid ground for her intended judicial review.
40. The applicant’s case and her danger from her husband due to her affair with a man, had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
41. 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).
42. Thus, despite the fact 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 as aforesaid.
43. As can be seen from the Board’s Decision, the Board had carefully analyzed and considered the applicant’s claims and all the evidence. The Board stated in no ambiguous terms in paragraph 31 of the Board’s Decision that the applicant did not convince the Board to be a reliable witness or that her version of story regarding the threats from her husband was believable.
44. As aforesaid, the Board had laid out its assessment of the applicant’s credibility in paragraphs 30 to 37 of the Board’s Decision, and it is not necessary for this court to repeat the same here.
45. In gist, the Board accepted the applicant’s personal and family background, her education and working history, her relationship with her husband was not good and the applicant might have borrowed and fully repaid the two loans in Hong Kong as claimed. However, the Board found that the applicant had exaggerated her case about the alleged threats from her husband. All the other matters including the other loans and the stated threats by her husband were not accepted. The Board also found nothing in the evidence that suggested that the government was involved or indifferent to any harm against her. In particular, the Board did not find that the applicant’s husband, being a farmer, was so powerful as claimed.
46. Nevertheless, despite its findings as summarized above, the Board had given consideration to the applicant’s case taking it at its highest and on the basis that her story was true to the extent that the stated threats had been issued towards her. However, the Board still found that the applicant was unable to establish a case for non-refoulement protection.
47. The Board found the applicant’s dispute with her husband to be a private domestic dispute. There was no evidence of state acquiescence and the applicant’s problem with her husband was not for a Convention reason. The ill-treatment that the applicant suffered did not reach a minimum level of severity, nor amount to torture.
48. Moreover, the applicant had never availed herself of the protection from the police or other public authorities in her country. The Board did not accept that she would not be accorded appropriate protection if there was a genuine need for her to seek assistance after she returned to Indonesia.
49. Further, although the Board did not see the question of internal relocation arose in view of its findings, the Board did explicitly state that if it were necessary for the applicant to get out of the place where she used to live and to keep away from her husband, the applicant, being young at the age of 30 at the material time with education and work experience, could relocate to other places in Indonesia.
50. Thus, the Board concluded that the applicant had no real risk of any of the proscribed forms of harm if she were refouled to Indonesia.
51. The finding of facts including the assessment of evidence, COI and risk of harm was solely within the ambit of the Board in dealing with her appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
52. 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.
53. 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
54. For reasons aforesaid, the Leave Application is dismissed.
Dated the 29th day of July 2026
| |
( Gladys LEE )
for Registrar, High Court
|
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
Notes for the applicant:
If leave has been granted, the applicant or his solicitors must:
|
|
|
|
|
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
|
|
Sent/Handed to the applicant/the applicant’s solicitors
on: 29/07/2026
Applicant’s ref. no:
Nil |
|
Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 29/07/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 20499
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 282/22 (Formerly RBCZ/5000163/22)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] COI usually refers to country of origin information in non-refoulement claims.
|