TRI MULIA ASIH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1318/2020

[2025] HKCFI 6184

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1318 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 Form 86 is amended on the Court’s own motion by naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent, naming only the Director of Immigration as the Putative Interested Party, and by naming “Decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office dated 18 June 2020” as the only Judgment, order, decision or other proceeding in respect of which relief is sought; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Indonesia. By a Form 86 filed on 26 June 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 26 June 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision, said in the Form 86 to be one of the Torture Claims Appeal Board (“TCAB”) dated 12 November 2019.

2.  However, there was no decision of the TCAB relevant to the Applicant dated 12 November 2019. At the oral hearing of her application on 27 August 2025, she confirmed that she sought leave in relation to a decision of the TCAB/Non-Refoulement Claims Petition Office (“NRCPO”) dated 18 June 2020 (“the TCAB Decision”)[1]. She had nothing else to add.

3.  I have hence amended the Form 86 of my own motion to reflect the proper Putative Respondent and Putative Interested Party, and to identify the TCAB Decision as the relevant decision in respect of the leave application.

4.  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

Background

5.  This is set out in the TCAB Decision. I will not repeat the contents thereof, but in summary:

(1)  The Applicant claimed non-refoulement relief on the basis that if she were refouled to Indonesia, she would be at risk of being ill-treated by her siblings, as well as by Indonesian society in general, on account of her status as the mother of an illegitimate child born out of wedlock to a non-Muslim father, one Chaiyasit;

(2)  The claim was assessed on the grounds of Torture Risk[2], BOR 3 Risk[3], BOR 2 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 29 October 2019 (“Director’s Decision”);

(3)  The Applicant appealed/petitioned to the TCAB/NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claim on 29 April 2020; and

(4)  The TCAB/NRCPO issued the TCAB Decision dated 18 June 2020, in which found that the claim for non-refoulement protection failed on all grounds, rejected the Applicant’s appeal/petition, and confirmed the Director’s Decision.

Legal Principles

6.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

7.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, 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 TCAB/NRCPO. (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

8.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

9.  The Applicant has not identified or set out any grounds of judicial review in the Form 86 or in the Affirmation. The latter merely alleges that she seeks leave because her life is in danger if she goes back to Indonesia. This does not amount to a ground of judicial review, and there is hence no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

10.  Nevertheless, given the seriousness of the issues at hand, I have in relation to the question of merits of the substantive application considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

11.  The TCAB/NRCPO set out the Applicant’s immigration and procedural history, and the details of the Applicant’s case as had been made to the Director, followed by the relevant law and principles relating to each of the four grounds including with regard to state protection, burden of proof, and the applicable level of risk that had to be demonstrated (Paragraphs 1 to 50). It then summarised the Director’s Decision, referred to a new allegation in the Notice of Appeal/Petition, and to the nature of the matter and issues before it, before it explained the conduct of the appeal including the provision of and discussion of further COI by the TCAB/NRCPO, the Applicant’s testimony at the hearing, and the parties’ submissions (Paragraphs 51 to 76).

12.  In the latter section, it was established not only that the Applicant’s son is (like Chaiyasit) a Hong Kong permanent resident, but also that he did not have an Indonesian passport as the Indonesian authorities had refused to grant him one as the Applicant was a non-refoulement claimant in Hong Kong. The Applicant also said that if she were refouled to Indonesia, she believed her son and Chaiyasit (with whom she had reconciled by the time of the hearing before the TCAB/NRCPO) would travel there to be with her, and that she intended to contact organisations named in the COI that would provide support services, and a friend Santi who might provide her with further information and assistance.

13.  The decision-maker then moved on to his assessment of the Applicant’s claim and, with regard to principles such as the high standard of fairness, burden, and the relevant level of risk, found that while he was prepared to accept her evidence as to the attitude of her siblings toward her and her son, and societal attitudes generally in Indonesia toward unmarried mothers, also found that it was purely speculative (and there was no sufficient evidence) that her siblings would be motivated to find and harm her and her son if she were to return to Indonesia with him. He further found that there was no sufficient evidence that Muslims in Indonesian society generally would subject the Applicant and/or her son to physical harm if she were to return to Indonesia with him, and that (with regard to relevant COI) reasonable state protection was available to the Applicant and her son in Indonesia. He found that her claim that she would be harmed by her siblings or Muslims in general in Indonesia was speculative and not based and not based on any recent and/or reliable information to such effect, and while accepting that she (and possibly her son) might face some discrimination in Indonesia, assessed the risk that she and/or her son would be seriously harmed in Indonesia to be low, with any risk of such also being diminished by the existence of reasonable and adequate state protection and the availability of internal relocation. As to the latter, she could also reasonably and viably relocate to Jakarta (Paragraphs 77 to 105). The decision-maker also made it clear that he had not made his decision based on the Applicant’s expectation that Chaiyasit would accompany the Applicant and her son to Indonesia (Paragraph 106).

14.  Accordingly, the TCAB/NRCPO found that Persecution Risk had not been established as the general level of discrimination did not amount to persecution, there was no real chance she would suffer harm if returned to Indonesia, and there was no well-founded fear that she faced a real risk of persecution if refouled to Indonesia. BOR 2 Risk, BOR 3 Risk, and Torture Risk were also not established given the findings as to risk of harm, the appeal/petition hence failed and was rejected, and the Director’s decision was confirmed (Paragraphs 107 to 117).

15.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision, and that justifies the grant of leave. This is especially so as to the assessment, reasoning, and findings regarding evidence, credibility, risk of harm, state protection, and internal relocation which are matters primarily within the province of the decision-making body. Nor is there any public law basis to vitiate the decision-maker’s consequent conclusions regarding Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk. I also do not consider that any public law issue arises from (and indeed no relevant complaint is made in relation to) the fact that the son was a child at the time of the TCAB hearing and TCAB Decision, and is still a child, since on the evidence he could not have made a non-refoulement claim against Indonesia.

16.  I am therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

17.  In the circumstances, I have made the orders above, including that the application for leave to apply for judicial review 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