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HCAL 424/2021
[2026] HKCFI 1764
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 424 OF 2021
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BETWEEN
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Nuriyah Temin |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.
2. 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 19 March 2021 and filed on 24 March 2021, 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 10 February 2021 (“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/2021/HCAL000424_2021_files/the_Board's_Decision.pdf
2. The Board rejected the applicant’s claim for non-refoulement protection as not substantiated on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 13 November 2020, which rejected the applicant’s non-refoulement claim.
Amendment
3. In Form 86, the applicant named the Board/ Non-refoulement Claims Petition Office as the putative respondent, when only the Board should be so named.
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 putative respondent at all.
5. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”.
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 if refouled to Indonesia, she feared harm from her late husband’s creditor, a Mr X. The applicant claimed that Mr X demanded her to repay the loan owed by her late husband but she was unable to do so. The applicant had no idea how much the loan was, and did not know the name of Mr X. The applicant also claimed that her name would be added to a travel list and she would be killed on arrival to Indonesia. Additionally, she claimed that she had no friends or family to support her if she was refouled to Indonesia.
Oral hearing
8. The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 3 March 2026.
9. As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.
10. Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.
Grounds for judicial review
11. 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).
12. In Form 86, under the heading “Grounds on which Relief is sought”, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test. She also mentioned her right to life should be protected.
Discussion
13. Although the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test, she did not state how or why the Board’s Decision was wrong, unfair and unreasonable. It does not help the applicant to establish any ground by just mentioning the right to life either.
14. In any event, the Board did assess the applicant’s risk of right to life, but found, on the credible evidence before it, that the applicant did not face a real risk of being deprived of her right to life if she was refouled to Indonesia.
15. 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).
16. Thus, 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.
17. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 4 February 2021 and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person.
18. As can be seen from the Board’s Decision, despite the applicant’s inability to provide details, the Board accepted the applicant’s whole story about an unpaid loan from Mr X for the purpose of assessing the applicant’s non-refoulement claim.
19. However, the Board considered that the applicant’s risk from Mr X was only remote and speculative. It was because of the applicant’s lack of any direct contact with Mr X since 1995, the passage of time since the death of the applicant’s late husband and the fact that the applicant lived in Jakarta for a decade between 1999 and 2009 and had returned to Indonesia in 2011 and 2013 all without any harm from Mr X. Thus, the Board found that there was not a real risk that the applicant would face any of the proscribed harm from Mr X if the applicant was refouled to Indonesia and resumed living in Jakarta, where she last lived for a decade in Indonesia.
20. The Board also accepted the applicant’s assertions that she had no relatives or friends from whom she could seek assistance and that she would face some hardship on re-establishing herself. However, the Board did not find the applicant’s hardship would amount to the proscribed forms of harm on any of the applicable grounds under the USM.
21. The Board also considered the other limb of the applicant’s claim, namely that her name would be added to a travel list and she would be killed on arrival to Indonesia. However, as the applicant had travelled to Indonesia multiple times without any incident, the Board did not accept that the applicant’s name would be on a travel list and that she would be arrested or killed upon refoulement to Indonesia.
22. Thus, the Board did not see any real chance that the applicant would be subjected to any of the proscribed forms of harm from Mr X or from the Indonesian authorities if she were returned to Indonesia. The Board rejected the applicant’s claim for non-refoulement protection on all the applicable grounds under the USM.
23. The finding of facts, including the assessment of evidence and risk of harm, was solely within the ambit 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 conclusion.
24. 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.
25. 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
26. For reasons aforesaid, the Leave Application is dismissed.
Dated the 25th day of March 2026
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( Teresa NG )
for Registrar, High Court
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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
Notes for the applicant:
If leave has been granted, the applicant or the applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors on: 25 March 2026
Applicant’s ref. no:
Nil |
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 25 March 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
The putative respondent’s ref. no.:
USM 17416/20/11/84/I1900
Director of Immigration
The putative interested party’s ref. no.:
QA T/C 597/20 (formerly RBCZ 10516/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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