PUJI RAHAYU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1951/2020

[2025] HKCFI 4572

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1951 of 2020

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  The Applicant’s Form 86 should be amended to name the TCAB Decision dated 9 September 2020 as the decision sought to be review; 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 29 September 2020 (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 “13 May 2020). She named the TCAB as the proposed respondent and the Director of Immigration (the “DOI”) as an interested party.

2.  From the case record, there was a decision by the TCAB dated 9 September 2020 (the “TCAB Decision”) which affirmed a decision by the DOI dated 18 March 2020 in refusing the Applicant’s non-refoulement protection claim.

3.  I take it that the Applicant is seeking judicial review of the TCAB Decision and I amended the Form 86 accordingly on my own motion.

4.  The Applicant requested for a hearing and attended the same.  When asked if she had anything to add she confirmed that she had not.

Background

5.  The Applicant is a national of Indonesia.  She seeks non-refoulement protection on the basis that she would be killed by loan sharks for not repaying a loan her friend borrowed using her name as well as her husband, if she was returned.  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

6.  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).

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

8.  Looking at the TCAB Decision, the TCAB considered the Applicant’s case, her testimony at the oral hearing before it and all the materials placed before it [6-17], assessed her credibility [18-20] before coming to the finding that the Applicant’s allegations were not made out [21-34].

9.  The TCAB proceeded to analyse each of the four applicable grounds under the USM, bearing in mind the correct principles on each, and come to the conclusion that none was made out [35-86].

10.  The TCAB further concluded that state protection [87-90] and internal relocation [91-96] were both available to the Applicant.

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

Conclusion

12.  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