PUPUT MIRNA DEWI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1299/2023

[2026] HKCFI 1425

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1299 OF 2023

Application for Leave to Apply for Judicial Review

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

Following:

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

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 and filed on 28 July 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 5 July 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/HCAL001299_2023_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claim for non-refoulement protection failed 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 21 September 2022 and confirmed the same.

The applicant’s case

3.  The applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed or killed by her husband as she could not give him money as requested.

Withdrawal of the Leave Application

4.  Before the Leave Application was dealt with, the applicant filed an ex parte application by way of her affirmation dated 4 December 2025 to withdraw the Leave Application.  

5.  As stated in the applicant’s said affirmation, she wanted to withdraw her Leave Application because she wanted to go back to her country.  However, the applicant did not indicate in her affirmation that it was safe for her to return or her problems in her home country had been resolved.  

6.  There is no evidence to show that the applicant made the withdrawal application other than out of her own volition.  With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing of the Leave Application even though she had previously requested one.

7.  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.”

8.  Thus, it is not right to leave the action at large.  The applicant’s application to withdraw the Leave Application is therefore refused and this court will proceed to deal with the Leave Application.

Grounds for judicial review

9.  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).

10.  The applicant did not advance any grounds for the intended judicial review in her Form 86.  In her supporting affirmation dated 28 July 2023, under the heading “GROUNDS FOR JUDICIAL REVIEW”, the applicant listed 6 grounds which are summarised as follows:-

(1)   The adjudicator did not consider her claim and did not even take time to think about her life;

(2)   The applicant submitted some documents but all in her mother language.  The adjudicator did not accept them because he could not understand the contents of them;

(3)   The applicant requested the adjudicator to give her time to translate the documents to English but the officer had no time;

(4)   The translator did not help the applicant 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)   The applicant asked this court to help her and save her life.

Discussion

11.  In Ground (1) as mentioned above, the applicant asserted that the Board did not consider her claim and her life, but such assertions were advanced without any particulars.  As can be seen from paragraph 36 of the Board’s Decision, the Board in fact accepted the applicant’s case and found her story to be internally consistent as to the domestic dispute with her husband.  It is clear that the Board had considered her claim and her life.  Thus, there is no substance in this ground.

12.  As to Grounds (2) and (3), this court notes that the applicant adopted what she had said in her Non-refoulement Claim Form and various written representations and what she had said at the interview with the Immigration Officer (see paragraph 14 of the Board’s Decision).  It seems that the applicant did not submit any documents in her mother language which were not accepted by the Board.

13.  In any event, the applicant did not specify what documents she submitted or intended to submit that were not accepted by the Board, or how such documents would assist her non-refoulement claim.  As aforesaid, the Board actually found her story to be internally consistent as to the domestic dispute with her husband.  Thus, the alleged documents would not have advanced her case any further.

14.  In relation to Grounds (4) and (5), the applicant could have raised her complaints about the interpreter/translator to the Board, if those matters had actually happened.  In any event, the applicant failed to specify what she could have raised with the proper assistance of an interpreter, which could help her to advance her case any further.

15.  Ground (6) is just asking this court to help her and save her life.  This is not a ground at all.

16.  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”.

17.  Thus, the applicant cannot rely on any general assertions without particulars as grounds for her intended judicial review.  This court finds that none of the grounds as stated in the applicant’s affirmation constituted a valid ground to challenge the Board’s Decision.

18.  The applicant’s alleged risks from her husband had been assessed 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.

19.  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).

20.  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.

21.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 12 June 2023 and the applicant was present.  Thus, the applicant was given the opportunity to present her case to the Board in person.

22.  As aforesaid, the Board accepted the applicant’s claim as to the domestic dispute with her husband.  However, the Board found that the ill-treatment by the applicant’s husband was not inflicted for any Convention reasons.  The husband just wanted money from her and there was no point of killing her or inflicting bodily harm to her, or else he could not get any money from her.  The Board did not accept that the ill-treatment, whether physical or mental, attained a minimum level of severity.  The Board also found that no state acquiescence was involved in the applicant’s husband treatment on her.

23.  Further, the Board found that the applicant did not seek assistance from the police in Indonesia regarding her husband’s domestic violence on her.  The Board found from extensive, fully-referenced country of origin information (“COI”) that while corruption and inefficiency in the police were reported, the Indonesian government had already tried her best to combat corruption, improve police professionalism and protect women.  The Board found that reasonable state protection was available to the applicant.

24.  Thus, the Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

25.  Although the Board did not assess the viability of internal relocation for the applicant, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997).  In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755).

26.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

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

28.  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.

29.  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

30.  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