SETYANINGSIH v. TORTURE CLAIMS APPEAL BOARD

HCAL 2213/2023

[2026] HKCFI 4902

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2213 OF 2023

Application for Leave to Apply for Judicial Review

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

Following:

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

1.  On this court’s own motion, the name of the putative interested party be amended to “Director of Immigration”.

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

3.  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 11 December 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 6 December 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/HCAL002213_2023_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s application for non-refoulement protection in Hong Kong failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 25 July 2023 (“the Director’s Decision”), which rejected her non-refoulement claim.

Amendment

3.  In Form 86, the applicant named the Board as both the putative respondent and the putative interested party, when the Board should only be named as the putative respondent and the Director should be named as the putative interested party.

4.  Thus, on this court’s own motion, the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

5.  The applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be killed by her former husband K as she had refused to reunite with K. She also feared that she would suffer serious ill-treatment by K, and by members of her own family and others living in her home area, because she was a lesbian.

Withdrawal of the Leave Application

6.  Before the Leave Application was dealt with, the applicant filed an ex-parte application by way of her affirmation dated 16 July 2026 to cancel the Leave Application. 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.

7.  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.

8.  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.”

9.  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

10.  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).

11.  The applicant did not advance any grounds for the intended judicial review in her Form 86. In her supporting affirmation dated 11 December 2023, the applicant stated her grounds for the intended judicial review in 7 paragraphs, 6 of which were “Against the Director’s Decision”.

Discussion

12.  As aforesaid, 6 out of the 7 paragraphs listed in the applicant’s affirmation dated 11 December 2023 were directed at the Director. However, the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). This court will therefore consider only the remaining ground directed at the Board in respect of the Board’s Decision.

13.  Paragraphs 1 to 6 in the applicant’s said affirmation were directed at the Director. Hence, they could not be used to challenge the Board’s Decision and can simply be ignored.

14.  In paragraph 7 of the said affirmation, the applicant stated as follows:-

“7.  <Against the Torture Claims Appeal Board’s Decision> <Procedural Impropriety and/or Illegality> Abdication of duty for failing to properly examine the Applicant’s case.”

15.  Such a ground is clearly vague and general without any requisite particulars related to the applicant’s case. The applicant did not elaborate on how the Board had failed to properly examine her case.

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, none of the matters that were contained in the applicant’s said affirmation could establish any valid ground to challenge the Board’s Decision.

18.  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).

19.  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.

20.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 25 October 2023 and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person.

21.  As can be seen from the Board’s Decision, the Board did assess every aspect of the applicant’s claim, and gave full reasons for rejecting her application for non-refoulement protection.

22.  The Board had laid out its assessment of the general credibility of the applicant, the applicant’s claimed past events and threats, and her future risk in paragraphs 87 to 100 of the Board’s Decision, and it is not necessary to repeat the same here.

23.  In gist, the Board found that the applicant provided only sparse information, which was mostly vague, generalized in nature and lacking in detail. It appeared to the Board that some of her responses were fabricated as she went along at the Board’s hearing. The fact that she did not raise a claim for non-refoulement protection until after she was arrested was not consistent with the actions of a person who genuinely feared serious ill-treatment. The general credibility of the applicant was undermined to the extent that the Board found her not to be a witness of truth. The Board formed the view that the applicant had exaggerated her description of some events and had invented parts of her story.

24.  The Board was not persuaded, on the balance of probability, that (1) K actually uttered threats to kill the applicant, as she claimed, or at all; and (2) the applicant’s mother, or other members of the applicant’s family, posed any threat of ill-treatment against the applicant.

25.  The Board considered that, even taking the applicant’s case at its highest, the applicant’s evidence asserted only that her mother advised her not to return home, if she returned to her home country.

26.  Even if it was assumed for the sake of argument that the applicant was assaulted by K during K’s visit to the applicant at her mother’s house in July 2019, the applicant sustained only minor injuries. If it was further assumed that K did state, on any occasion, that he would kill the applicant, the Board was not persuaded, on the balance of probability, that the words used by K amounted to anything more than wild and angry outbursts by K, which were made in the heat of the moment.

27.  On the totality of evidence, the Board was not persuaded that K’s words constituted a real and personal threat to the applicant’s life, if she was refouled to Indonesia.

28.  Moreover, given that the applicant said that nobody else in Indonesia, apart from K and her mother, was aware that the applicant claimed to be a lesbian, the Board was also not persuaded, on the balance of probability, that there was a real risk that the applicant would suffer serious harm, even death, at the hands of other villagers, because she claimed to be a lesbian.

29.  Based on its findings as summarized above, the Board concluded that the applicant had failed to establish, even to the low standard required, that there was a real risk that she would suffer serious harm or death at the hands of K, or members of her own family, or other villagers, if the applicant was refouled to Indonesia, because of her claimed sexuality.

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

31.  Although the Board did not consider state protection and internal relocation, it was unnecessary to make findings on the availability of state protection as the Board found that the applicant did not face any real risk of harm.

32.  As to internal relocation, 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).

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

34.  The finding of facts, including assessment of evidence and risk of harm, was solely within the ambit of the Board in dealing with her appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

35.  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.

36.  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

37.  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