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

HCAL 3461/2019

[2025] HKCFI 5401

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3461 of 2019

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a “Notice of application to apply for leave for judicial review” in the prescribed Form 86 filed on 22 November 2019, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (“Board”) dated 28 October 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 20 April 2017 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds.  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003461_2019_files/the_Board's_Decision.pdf

2.  The basis of the applicant’s claim was that, if refouled to Indonesia, she would be harmed or killed by her ex-husband for having refused the reconciliation. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

3.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 15 August 2025.  The applicant attended the hearing in person.  After having heard from her, this court informed him that the decision would be reserved, and be sent to her updated address.

Discussion

4.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

5.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.  In her Form 86, the applicant made general complaints about the Board averring that it had acted unreasonably and unfairly by placing too much reliance on COI.  She further stated that it was procedurally improper for the Board to have required her to respond to questions that she was not in a position to offer any response.  The Board had failed to take into account the nexus of political parties and official corruption.  The supporting affirmation provided no such grounds at all.  However, before the hearing, the applicant filed a second affirmation exhibiting a written submission in support of the Leave Application.  In the written submission, the applicant submitted that the Board was not fair.  Most importantly, the applicant alleged that she had not been provided with proper legal and language assistance, and that the Board’s Decision was not translated to her.

6.  At the hearing, this court asked the applicant asked the applicant to elaborate on her allegation stated in the written submission about the lack of legal and language assistance.  The applicant stated that when she completed the documents for the Leave Application, there were things she did not understand.  When she sought help from her friend, her friend suggested her to make the said allegation.  The applicant clarified that the complaint of lack of language assistance was not directed to the hearing before the Board.  It was meant to be referring to the difficulty she encountered when she was preparing the application.  However, she had received assistance for the preparation of the documents in the Leave Application.  The applicant asked this court to approve her Leave Application as she did not feel safe to go back as her ex-husband would harm her.

7.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3]  In the present case, the Board found that even assuming that her version of event was credible and truthful, the past ill-treatment did not meet the requisite minimum level of severity. The Board found that the applicant had failed to establish there was any risk of harm if refouled.  The Board further found that state protection and internal relocation would be reasonably available.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

8.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness.  I am satisfied that the Board was entitled to conclude that there was no risk of harm after having found that the past ill-treatment did not meet the requisite requirement.  The applicant’s grounds set out in her Form 86 and the written submission were vague and did not condescend to particulars.  Regarding the complaint about lack of language and legal assistance, the applicant had in fact clarified that she had obtained help in the preparation of the documents.  Hence, it is clear that she would have had access to language assistance of her own if she found it necessary.  It has been repeatedly stated by the Court of Appeal that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process and that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he/she desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11]; and Re Tariq Farhan [2018] HKCA 17 at [11].  I do not find the non‑availability of legal representation in the processes before the Board or the court would amount to any procedural unfairness.  The applicant was also unable to provide any valid grounds to support the Leave Application at the hearing.  The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Order

9.  The applicant’s application for leave to apply for judicial review be 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