SARTIKA DEWI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1174/2022

[2025] HKCFI 4586

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1174 OF 2022

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents andoral submissions by the applicant or counsel in open court;

1.      On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

2.      The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

3.      The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 31 October 2022, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 26 October 2022 (“the Board’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL001174_2022_files/the_Board's_Decision.pdf

2.  The Board found that the applicant was unable to establish a real likelihood of risk pertinent to any of the applicable grounds under the Unified Screening Mechanism (“the USM”) regarding her non-refoulement claim.  Hence, the Board dismissed her appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 12 November 2021.

Amendments

3.  In Form 86, the applicant named the Board / Non-refoulement Claims Petition Office as the proposed respondent and the Board as the putative interested party, when only the Board should be the putative respondent and the Director should be the putative interested party. 

4.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a party at all.

5.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

6.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

7.  In sum, the applicant claimed for non-refoulement protection because her husband threatened to torture or even kill her upon her return to Indonesia due to her previous affair with a Chinese boyfriend in Hong Kong.

Withdrawal of the Leave Application

8.  By way of an undated letter addressed to the High Court which was received on 11 July 2025, the applicant applied to withdraw her non-refoulement claim and close her case because she wanted to go back to her home country Indonesia.  The applicant also mentioned that she would be safe to go back.

9.  Separately, by way of a letter dated 16 July 2025, the Director informed this court that the applicant had signed a submission dated 15 July 2025, stating her intention to close her case and to return to her home country.  In the said submission, the applicant stated that she would like to withdraw her judicial review application as she wanted to return to her home country as soon as possible.  The applicant also stated that her issues in her home country had been resolved and she could return home.

10.  There is no evidence to show that the applicant made the above withdrawal applications other than out of her own volition.  With the withdrawal applications, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing for the Leave Application.  It is therefore not necessary for this court to afford her any oral hearing for the Leave Application even though she had requested one before.

11.  However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

12.  Thus, it is just not right to leave the action at large by granting leave to withdraw to the applicant.  This court will proceed to determine the merits of the Leave Application.

Grounds for judicial review

13.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

14.  The applicant did not state any ground for her intended judicial review in Form 86, but in a document attached to her supporting affirmation dated 31 October 2022, the applicant asserted 6 paragraphs of grounds for her intended judicial review under the heading “GROUNDS FOR JUDICIAL REVIEW FOR MY NON REFOULEMENT CLAIM”.  Many other applicants in similar applications had in fact used the contents of this document and it is like a template for them.

Discussion

15.  All the 6 paragraphs listed in the applicant’s attachment to her affirmation dated 31 October 2022 under the heading “GROUNDS FOR JUDICIAL REVIEW FOR MY NON REFOULEMENT CLAIM” were all very general and without any particulars related to the applicant’s own case. They only contained “keys words” such as there was procedural impropriety or irrationality on the part of the Board, the Board had failed to conduct sufficient inquiry into relevant country of origin conditions, there was error or misdirection in law, etc.  It does not help the applicant to establish any ground by just mentioning her BOR 2 Risk[1] and BOR 3 Risk[2]either. 

16.  In any event, the Board did assess the applicant’s BOR 3 and BOR 2 Risks.  The Board found from the applicant’s own evidence that her husband had been violent towards her since 2014 because of financial pressure.  She believed her husband would not have abused her if there had been no financial pressure.  The applicant heard no more news about debt dunning after she had travelled to Hong Kong in 2017.  With her husband’s income and her remittances, it was highly likely that her husband had effectively settled the outstanding loan.  Therefore, there would be no physical abuses by her husband in relation to financial pressure.

17.  The only matter which triggered the suspicion of her husband was a mere image of a social dining between the applicant and a man.  The applicant had already denied any intimate relationship with this man.  The Board found no indication that her husband would risk very severe criminal sanction to kill the applicant.  Moreover, with the passage of time, he might not even have the motive to do so.

18.  The applicant also alleged that the adjudicator had failed to conduct sufficient inquiry into relevant country of origin conditions, which is plainly untrue.  As can be seen in the Board’s Decision, the Board had indeed gone through very extensive country of origin information (“COI”) materials before it arrived at its conclusion that state protection would be available to the applicant upon refoulement, and internal relocation was viable for her.

19.  The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626).  Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.

20.  Thus, none of the grounds that were contained in the said document could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.

21.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

22.  Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

23.  The applicant was afforded an oral hearing before the Board on 4 July 2022 and the applicant was present.  Thus, the applicant did have the opportunity to present her case to the Board in person.

24.  The applicant had produced nothing in support of her versions concerning the loan, the dunning of debt and repayment of loan by her husband and her, the threats from their creditor as well as the threats from her husband.  The Board found that it was unreasonable for the applicant and her husband to venture into a new business without assistance of anyone who might provide relevant experience.  There was no good reason for them to take the risk in borrowing a large sum from a loan shark when they were actually in a sound financial position before that.  The Board also found it strange that the applicant could have forgotten where she had kept the loan agreement, which was an important proof of their loan.  The Board could not be sure if the issue of the debt, their business, the intimidation from their creditor as well as the threats from her husband ever existed.

25.  Despite its findings as summarised above, the Board nevertheless continued to consider the various grounds upon which the applicant’s non-refoulement claim was based.

26.  The Board found that the applicant’s case was about a private matter and she was only pursued by her husband who threatened to kill her due to her previous affair with a Chinese boyfriend in Hong Kong.  The applicant did not take her case up to any police stations or government authorities.  The state would have no knowledge about the issues between the applicant and her husband. Obviously, the applicant was not targeted by the state or its agents.  The element of official capacity could not be established.

27.  Although the applicant’s husband was violent towards her on four occasions from 2014 to 2015, there was no severe injuries caused by her husband.  The applicant attributed it to the family’s financial stress and she believed that he would not have abused her if there had been no financial pressure.  On the other hand, her husband always cared for her and their daughter.

28.  As aforesaid, with her husband’s income and her remittances, it was highly likely that her husband had effectively settled the outstanding loan.  Therefore, there would be no physical abuses by her husband in relation to financial pressure.

29.  In respect of the image of the social dining with her friend in Hong Kong, the applicant said her friendship with the man had ended at the end of 2019.  The applicant said it was understandable for her husband to have been getting angry and delivered a death threat to her, because he must have had the impression that she had had a boyfriend in Hong Kong upon seeing the picture.  The Board considered that in the absence of any further evidence of her relationship with another man in Hong Kong, her husband was unlikely to harm her upon her return.  Moreover, the applicant could always report against her husband if he assaulted her again.  There was no indication that her husband would risk severe criminal sanction to harm her, and therefore there was no risk of harm from her husband.

30.  Indeed, the Board further found that effective state protection was available for the applicant, and internal relocation was viable for the applicant.  The Constitution of Indonesia guaranteed her rights to choose her place of residence and employment, and the right to work.  With her education and vast working experience, both local and overseas, the applicant, in her prime, would have no difficulty in securing a reasonable job in different parts of Indonesia.  Even if her husband persisted to locate her after she had relocated to other parts of her country, it was against common sense to suggest that her husband would be able to find her in such a large country with such a huge population.

31.  Taking the above into account, the Board found that there were no substantial grounds for believing that the applicant would suffer ill-treatment, serious harm, arbitrary deprivation of life or persecution upon refoulement.

32.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board.  The Board was entitled to make its own decision.  This court finds nothing wrong or unreasonable in the way the Board reached its decision. 

33.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

34.  Thus, there is no merits in the Leave Application at all.

35.  Moreover, as the applicant had confirmed that it would be safe for her to return to her home country and her issues in her home country had been resolved, it is clear that she no longer needs non-refoulement protection and the Leave Application serves no practical purpose.

36.  It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (see AW v Director of Immigration and William Lam, CACV 63 of 2015).

37.  Even assuming that there were errors of law, procedural unfairness, or irrationality in the Board’s Decision and the case were remitted to the Board for reconsideration, there would simply be no more basis for the applicant to claim non-refoulement protection as it was no longer unsafe for her to return to his own country.  The Board should assess the risk of the applicant at the time of the proceedings, taking account of information that has come to light to ensure that it is able to make a “full and up-to-date assessment” of the current situation (see Ubamaka Edward Wilson v Secretary for Security and Another (2012) 15 HKCFAR 743).

38.  It is therefore otiose and pointless to grant leave to the applicant to proceed with the intended judicial review.

39.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the intended judicial review has no realistic prospects of success at all, and hence the Leave Application must be dismissed.

Conclusion

40.  For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is 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