RIA AGUSTINA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 678/2023

[2026] HKCFI 3085

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 678 of 2023

Application for Leave to Apply for Judicial Review

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

Following;

1.   The Applicant’s Form 86 be amended to name only the TCAB as the putative respondent and name the DOI as a putative interested party; and

2.   The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 9 May 2023 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) dated 20 April 2023 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 17 January 2022 in refusing the Applicant’s non-refoulement protection claim.  She named both the TCAB and the DOI as proposed respondents, and stated the TCAB hearing venue address in the box for naming interested party.

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

3.  The Applicant did not request for a hearing and this application is to be dealt with on paper.

Background

4.  The Applicant is a national of Indonesia.  She seeks non-refoulement protection on the basis that if she was returned, she would be harmed or killed by a loan shark from whom her father had borrowed money.  Her personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

5.   In a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  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, [14(1)]).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

6.  In the Form 86 and her affirmation filed in support of this application, the Applicant did not point to any particular error of law, procedural unfairness or irrationality of the TCAB Decision.

7.  Looking at the TCAB Decision, the TCAB took into consideration the Applicant’s case and evidence, including her testimony at the hearing before it [2-18, 22-45].  After thorough analysis and assessment and referring to relevant Country of Origin Information, the TCAB came to the findings and conclusions that none of the allegations was made out, and internal relocation would be available to the Applicant [46-57].

8.  With in mind the correct principles applicable to each of the four applicable grounds under the USM, the TCAB also found and concluded that none was made out [58‑73].

9.  I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

10.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review.  I therefore 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