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

HCAL 3779/2019

[2025] HKCFI 1403

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3779 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

1.   Form 86 be amended on my own motion to name the TCAB as the putative respondent and the DOI as the putative interested party; and

2.   Leave to apply for Judicial Review be dismissed.

Observation for the Applicant:

Introduction

1.  By a Form 86 filed on 18 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision of her “non repaidment claim” dated 29 November 2019.  She named the Torture Claims Appeal Board (the “TCAB”) and Director of Immigration (the “DOI”) respectively as proposed 1^st and 2^nd respondents, and the TCAB as an interested party.

2.  According to the papers filed for this application, there was a decision by the TCAB dated 29 November 2019 (the “TCAB Decision”), which affirmed a decision by the DOI dated 26 September 2018 refusing the Applicant’s non-refoulement protection claim.

3.  As such, I amended the Form 86 on my own motion to name the TCAB as the putative respondent and the DOI as a putative interested party.

4.  The Applicant did not ask for a hearing of this application and hence I proceeded to deal with it on paper.

Background

5.  The Applicant is an Indonesia national and had previously worked in Hong Kong as a domestic helper.  She seeks non-refoulement protection on the basis that her husband in Indonesia refuses to have a divorce, and threatened to kill her if she is to divorce him.  Her personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

6.  In a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision‑makers.  This 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 (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676).

7.  In her affirmation filed in support of the Form 86, the Applicant has only stated that she was “not satisfied [with] the decision of imigration [sic.] ” and has not pointed to any error of law, procedural unfairness or irrationality of the TCAB Decision, which is the proper subject of review; or the decision by the DOI for that matter.

8.  As can be seen from the TCAB Decision, the Applicant’s factual case, including her written submissions and evidence, had been fully ventilated at the hearing [7].  The TCAB analysed all the available evidence in detail and came to reject the Applicant’s alleged risk of harm posted by her husband [8-59].

9.  The TCAB then proceeded to analyse each of the four applicable grounds under the USM, applying in each instance the correct legal principles to the available evidence, and found none of them established [60-94].

10.  I have not detected any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

11.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review.  I therefore dismiss the 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