FIFTIN OCTARISA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 277/2020

[2025] HKCFI 2363

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 277 of 2020

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;

1.  The Form 86 is amended on the court’s own motion.

2.  The Leave Application be dismissed.

Introduction

1.  By prescribed Form 86 filed on 2 March 2020, 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 24 January 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 30 May 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds except torture risk[1] which was covered by a prior decision of the Director dated 5 December 2012. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000277_2020_files/the_Board's_Decision.pdf

2.  In her Form 86, the applicant named the Board as the interested party. As the Director should have been the proper interested party, the Form 86 will be amended accordingly on the court’s own motion.

3.  The basis of the applicant’s claim was that she would be harmed or killed by her husband or his loan sharks. 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.

4.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 24 April 2025. The applicant attended the hearing in person. After having heard from her, this court informed her that the decision would be reserved, and be sent to her updated address.

Discussion

5.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

7.  In her affirmation in support of her Form 86, the applicant raised the following grounds for judicial review, which can be summarized as follows. The Board’s

(a)  Failure to conduct due diligence that state reforms and relief against torture be effective;

(b)  Failure to conduct sufficient inquiry into country of origin condition;

(c)  Failure to provide reasons to support a conclusion of no BOR 3 risk;

(d)  Failure to consider psychological strain and death threats;

(e)  Failure to consider that the applicant still feared her enemies, that she could not repay her loan, that there was still genuine risk, and that she could not easily relocate because her enemies could easily trace her within her own country;

(f)  Conclusion that the applicant and her family would not be at risk of torture and/or cruel, inhuman or degrading treatment or punishment upon refoulement lacked sufficient basis to support.

8.  At the hearing, this court asked the applicant whether she had any further grounds she wished to submit in support of the Leave Application. Apart from stating that debt collectors recently came to her house and threatened her parents, and that she was very scared of them, the applicant did not have anything else to say or add to the written grounds she had provided.

9.  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.[4] In the present case, the Board found numerous material discrepancies between her testimony and her written claim form. After the Board had drawn her attention to these discrepancies, the applicant was unable to provide a plausible or satisfactory explanation. The Board thus found the applicant’s version of events about the relationship with her husband, the alleged threats or loan was not true. It concluded that the applicant would not be at a real risk of harm if she returned to Indonesia, and rejected her appeal. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

10.  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. The Board had used the oral hearing to question and raised the concerns it had with the applicant over various aspects of her evidence. The Board was entitled to reject the applicant’s evidence. The written grounds the applicant had provided lack particulars. Neither are these grounds were further elaborated at the hearing before the court. 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[5].

Order

11.  The Form 86 is amended on the court’s own motion.

12.  The Leave Application 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