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

HCAL 822/2022

[2026] HKCFI 2547

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 822 of 2022

Application for Leave to Apply for Judicial Review

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

Following;

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

Observations for the Applicant:

Introduction

1.  By Form 86 dated 24 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 14 July 2022 (“Board’s Decision”), which affirmed the Decision of the Director of Immigration (“Director”) dated 5 October 2021. 

2.  An oral hearing, which was requested by the Applicant, took place before me on 25 February 2026.  The Applicant attended in person. 

3.  At the hearing, the Applicant indicated that she had nothing to add to the papers submitted for her Leave Application. 

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 by her ex-husband if she was returned to her country.  According to the Applicant, her ex-husband considered her remarriage a grave insult to him and had made threats to her family that he would 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 this Leave Application, the Applicant has not stated any ground of judicial review.  She has not identified any error of law or procedural unfairness or irrationality in the Board’s Decision to demonstrate a reasonably arguable case. 

10.  In any event, 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 found that there was no real intention on the Applicant’s ex-husband’s part to seriously harm or kill her as he had never physically harmed her or any of her family members.  He also had no means of contacting her: §§49-50. 

(2)   In any case, the Board noted that the Applicant never sought assistance from the Indonesian police.  Having considered the relevant COI, the Board took the view that if the Applicant so required, meaningful state protection would be available to her: §§51-53. 

(3)   Further still, the Board considered that the Applicant could relocate to other areas such as Jakarta and Surabaya without undue hardship: §§54-55. 

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 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

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