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

Application for Leave to Apply for Judicial Review

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

Following:

1.   The Form 86 be amended to name the Torture Claims Appeal Board / Non-refoulement Claims Petition Office as the putative respondent and 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 a Form 86 filed on 7 February 2022 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against “7 FEBRUARY doing to be dismissed my subsequent claim by the director of immigration 14 September 2021”.

2.  In the Affirmation in support of the Leave Application, the Applicant stated that she does not want to return to Indonesia as her brother wants to kill her. She exhibited a copy of the Decision of the Torture Claims Appeal Board / Non refoulement Claims Petition Office (the “Board”) dated 27 January 2022 (the “Board’s Decision”). In the Board’s Decision, the Board rejected the Applicant’s appeal against the Decision of the Director of Immigration (the “Director”) dated 14 September 2021 (the “2021 Imm Decision”).

3.  It appears from the Form and the Affirmation that the Applicant wishes to seek leave to apply for judicial review of the 2021 Imm Decision and the Board’s Decision. However, the 2021 Imm Decision is no longer susceptible to judicial review as it has been superseded by the Board’s Decision: see Re Moshin Ali [2018] HKCA 549 at para. 45. In the circumstances, I will take it that the Leave Application covers only the Board’s Decision.

4.  I will amend the Form on my own motion to name the Board as the putative respondent and the Director as the putative interested party.

5.  The Applicant requested a hearing of the Leave Application, which took place on 22 January 2026 (the “Hearing”). At the Hearing, the Applicant repeated her wish to stay in Hong Kong.

Background

6.  The Applicant’s background, the basis of her claim and the arguments she advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below[1] for reference.

Discussion

7.  The relevant legal principles are well established.  The Court’s role in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence, country of origin information (COI) materials, 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, procedural unfairness or irrationality in the decision of the Board: see Nupur Mst v Director of Immigration [2018] HKCA 524 at para. 14.  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: see Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

8.  Having considered all the relevant materials before me, I do not consider the Applicant’s intended challenge against the Board’s Decision to be reasonably arguable with any realistic prospect of success.

9.  I have reviewed the Board’s Decision in detail.  In the Decision, the Board had fully considered the Applicant’s grounds for challenging the Director’s decision in refusing her claim for non-refoulment protection. Having considered the Applicant’s evidence thoroughly, the Board reached the conclusion that there is no genuine or substantial risk that the Applicant would be killed or harmed by her elder brother. The Board took the view that protection from the Indonesian governmental authorities would be available should the Applicant reports her case to them. Further, as the Board pointed out, there were internal relocation options open to the Applicant. On the above bases, the Board rejected the Applicant’s appeal: see the Board’s Decision paras. 23-48.  I do not consider there to be any error of law, procedural unfairness or irrationality in the Board’s Decision.

10.  Leave application of this sort is meant to be a filtering process and this Court is not expected to give elaborated reasons for its decision: see Re Zunariyah [2018] HKCA 14 at para. 23.  I have considered all the relevant documents and the grounds raised by the Applicant in reaching the present decision.

Conclusion

11.  For the reasons stated above, I will dismiss the Leave Application.

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