HAMIMAH v. TORTURE CLAIMS APPEAL BOARD

HCAL 754/2023

[2026] HKCFI 4922

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 754 OF 2023

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 and oral submissions by the applicant in open court;

1.  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 17 May 2023, 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 27 April 2023 (“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/2023/HCAL000754_2023_files/the_Board's_Decision.pdf

2.  The Board rejected the applicant’s claim for non-refoulement protection in Hong Kong on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 14 November 2022 and confirmed the same, which rejected the applicant’s non-refoulement claim.

The applicant’s case

3.  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.

4.  In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed or killed by her creditor Sunari for failing to settle her debts; by her elder brother and the Muslim villagers at her village for her previous out of wedlock pregnancy and her conversion from Sunni Islam to Shia Islam.

Oral hearing

5.  The applicant requested for an oral hearing of the Leave Application, and her case was heard on 20 August 2026.

6.  The applicant confirmed that she would rely on the grounds stated in her supporting affirmation dated 17 May 2023 for her intended judicial review. When this court asked the applicant to elaborate on the said grounds, she merely replied that she had nothing to add.

Grounds for judicial review

7.  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).

8.  The applicant did not identify any ground for the intended judicial review in Form 86.

9.  In her supporting affirmation dated 17 May 2023, the applicant first mentioned that she had life threat in her country Indonesia, her enemy was a powerful man who never abided by the law and gave money to the police, the authority listened to him word for word, and that no one in society would help her.

10.  The applicant then advanced 6 grounds under the heading “GROUNDS FOR JUDICIAL REVIEW”. The grounds are summarised as follows:-

(1)  The adjudicator did not consider her claim;

(2)  The adjudicator did not accept her documents as the documents were in her mother language;

(3)  The officer refused to give her time to translate the documents because he had no time;

(4)  The translator did not help her at all and became angry if the applicant did not understand;

(5)  The interpreter asked her not to take long time for interview as he had another job; and

(6)  She asked the court to help her and save her life.

11.  As aforesaid, at the oral hearing, the applicant only said that she would rely on what were stated in her affirmation and did not elaborate on any of the matters contained therein.

Discussion

12.  First of all, the applicant’s danger in her home country had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

13.  As to the matters that were stated as “GROUNDS FOR JUDICIAL REVIEW” in her supporting affirmation, all the grounds (except ground (6) which is not a ground at all) were asserted without any specificity. Many applicants in similar applications used them like a template without any regard to their own cases. The applicant is no exception.

14.  She did not state: (1) how the adjudicator did not consider her claim (apart from saying the adjudicator did not take time or did not think about her life); (2) which part(s) of her claim was not considered; (3) what documents she intended to submit were rejected as they were not translated; (4) how the interpreter or translator’s attitude had prejudiced her; and (5) what she wanted to tell the Board was not presented because of the attitude of the interpreter or translator.

15.  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”.

16.  Thus, the general assertions that were contained in the applicant’s affirmation cannot help her at all.

17.  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).

18.  Thus, the applicant cannot ask this court to re-assess her non-refoulement claim. Nevertheless, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

19.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 10 February 2023, and the applicant was present and was represented by duty lawyer from the Duty Lawyer Service. Thus, the applicant was given the opportunity to present her case to the Board through her legal representative.

20.  As can be seen from the Board’s Decision, the Board had given a detailed analysis of all the aspects of the applicant’s claims and its reasoning in rejecting the applicant’s claim for non-refoulement protection.

21.  The Board had laid out its assessment of the applicant’s claims in paragraphs 49 to 50 of the Board’s Decision, and it is not necessary to repeat the same here.

22.  In gist, the Board found that there were a large number of inconsistencies and discrepancies in the applicant’s evidence, the applicant’s credibility was doubtful and her claim was exaggerated.

23.  With regards to the applicant’s claimed threats from her creditor Sunari, the Board found that even if the applicant’s claim of indebtedness to a moneylender was accepted, the applicant was not in danger of imprisonment for unpaid debts to Sunari. In any event, Sunari was an unregistered and unlicensed moneylender charging exorbitant interest, and he would not be able to recover the debt in law courts in Indonesia.

24.  Further, the applicant’s brothers who were living in the same house at the home village, and the applicant’s friend and guarantor remained unharmed by Sunari. Moreover, despite that Sunari lived close to the applicant’s home village, he did not locate the applicant on her last visit to Indonesia in 2016. The applicant should be safe to return to Indonesia if she relocated to other parts of the country, since Sunari had not met her and did not know what she looked like.

25.  In respect of the applicant’s risk by Sunni Muslims due to her conversion to Shia, the Board found on the applicant’s admission that she converted to Shia to adopt the faith of her Pakistani husband/partner, whom she married by religious marriage ceremony at a mosque in Hong Kong. The applicant would not be able to return to Pakistan with her husband/partner if he returned to Pakistan due to the lack of consent by her husband/partner’s wife in Pakistan. However, the applicant also admitted that there was no difference in the appearance or attire between Sunni and Shia Muslims in Indonesia. Even if she remained Shia on her return to Indonesia, so long as she relocated to a big city such as Jakarta where there was a large community of Shia, she would not be at risk to practise as a Shia Muslim. Further, she would not face harsh treatment from Sunni Muslims in Indonesia because sectarian identity between Sunni and Shia Muslims was less pronounced in Indonesia according to country of origin information (“COI”).

26.  As to the applicant’s risk from her elder brother, the Board found that the applicant had been supporting her brothers with her earnings in Hong Kong. There was no valid reason for her older brother to eliminate the source of his maintenance. Further, it was the applicant’s evidence that she borrowed money because she wanted to make use of her deceased parents’ farmland to grow salak for profit. If her evidence was accepted, the applicant’s intention was to give her brothers a business opportunity. Unfortunately, her younger brother spent all the money in the crops business but the crops were destroyed by a volcanic eruption. Her elder brother sold the farmland without her consent and he had also kept her share of the proceeds. The Board thus found that both her brothers were indebted to her and there was no reason for her older brother to be angry with her enough to kill her. The Board found this aspect of the applicant’s claim to be incredible and implausible.

27.  The Board concluded that given the applicant’s profile, she should be able to relocate to other parts of Indonesia on her return. The Board found it unlikely that she would come to any harm in her country from either Sunari or the Sunni Muslim community if she relocated to a big city in Indonesia. Her evidence on the risk of danger from her creditor, her older brother and the Sunni Muslim community on her return was exaggerated and unreliable and her claim fanciful and implausible.

28.  The Board had also gone through extensive COI in assessing the availability of state protection for the applicant in paragraphs 66 to 68 of the Board’s Decision. The Board found that there was sufficient state protection in Indonesia for the applicant in case she required assistance.

29.  Last but not least, the Board had laid out its further reasons in paragraphs 69 and 70 of the Board’s Decision for its finding that the option of relocation was opened to the applicant should she wish to do so.

30.  Thus, the Board found that the applicant had no real risk of any of the proscribed forms of harm upon her return to Indonesia.

31.  The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

32.  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 error 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.

33.  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 applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

34.  For reasons aforesaid, 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