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

HCAL 832/2022

[2026] HKCFI 2548

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 832 of 2022

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 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 Form 86 dated 25 August 2022 (“Form 86”), the Applicant seeks leave to apply for judicial review (“Leave Application”) against the Decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“Board”) dated 23 June 2022 (“Board’s Decision”), which affirmed the Decision of the Director of Immigration (“Director”) dated 8 November 2021. 

2.  The Form 86 incorrectly named the Board as putative interested party.  I therefore amend the Form 86 on my own motion to name the Director as the putative interested party instead. 

3.  An oral hearing, which was requested by the Applicant, took place before me on 25 February 2026.  The Applicant was however absent from the hearing.  

Background

4.  The Applicant is from Indonesia.  Her background and the basis of her application for non-refoulement were set out in detail in the Board’s Decision at this hyperlink.[1] I will not repeat them here.  Unless otherwise specified, I adopt the abbreviations in the Board’s Decision. 

5.  In short, the Applicant claimed to be in fear of being harmed or killed by her husband if she was returned to her country, because she had failed to send him money so that he could repay a loan taken out in her name in 2017.  According to the Applicant, her husband had verbally threatened to kill her. 

Discussion

6.  Leave application is meant to be a filtering process and the court is not expected to give elaborate reasons for its decision: Re Zunariyah [2018] HKCA 14 at §23.  I therefore set out below brief reasons for my decision, which I have reached upon considering all the materials before me. 

7.  The court’s role in judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court adopts in non-refoulement cases an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials and 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 errors of law or procedural unfairness or irrationality in the decision of the Board: Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(1).  There must be a reasonably arguable case, namely one which enjoys a realistic prospect of success, before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at §§14-17. 

8.  In a proper Form 86, an applicant is required to state the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) at §142.  He or she is also under a duty to make full and frank disclosure of material facts: Kan Hung Cheung v The Director of Immigration [2008] HKC 323 at §§14-17. 

9.  In the Form 86, the Applicant has not stated any ground of judicial review.  In her affirmation, the Applicant stated that she did not want and was very scared to go back to her country because of “my loan shark” whom she said would kill her and endanger her life.  However, the Applicant’s case is that her husband had threatened her with death if she did not send him money and she had not previously suggested that she was at risk of harm from her “loan shark” before the Board.  In any event, these are not proper grounds of judicial review, as they do not identify any error of law or procedural unfairness or irrationality in the Board’s Decision to demonstrate a reasonably arguable case.  Be that as it may, I have considered the same. 

10.  Furthermore, I have reviewed the Board’s Decision and I do not detect any error of law, procedural unfairness or irrationality.  The Board assessed the evidence in detail and gave adequate reasons for its decision.  In particular:

(1)   The Board considered that there was no real risk of harm to the Applicant as (i) her husband had no history of physical violence; (ii) she had not contacted him for years and not seen him in five years; and (iii) it was unclear why her husband would threaten her to repay a loan for which he had no legal responsibility and where there was no evidence of the bank ever pressuring him: §42. 

(2)   In any case, the Board noted that the Applicant took no steps to report the matter to the police and she accepted that she was not alleging the police would not protect her.  The Board also considered the relevant COI and observed that there was no indication that the police would not protect the Applicant in the unlikely event that she was faced with threats: §§56-58. 

(3)   Further still, the Board took the view that the Applicant had the option of relocating to cities such as Jakarta or Surabaya if necessary, having regard to her education and work experience.  The Board considered that the chances of her husband locating her in these cities would be reduced: §§88-89. 

11.  In the premises, I conclude that the Applicant’s intended challenge against the Board’s Decision is not reasonably arguable. 

Conclusion

12.  I make an order that the Form 86 be amended in the manner set out above and that the Leave Application be 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