SUMARWIN alias SUMARWIN DASI alias SUMARWIN DASI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1540/2020

[2025] HKCFI 4683

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1540 of 2020

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 the documents and oral submissions by the Applicant in open court;

1.   Form 86 be amended, naming the Director of Immigration as the Putative Interested Party.

2.   The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 22 July 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 2 July 2020 (the “TCAB Decision”), which affirmed the decisions of the Director of Immigration (the “DOI”) dated 25 October 2018.

2.  I amend the Form 86 on my own motion to name the DOI as the putative interested party.

3.  The Applicant requested for a hearing of this application and she attended the same.  When asked if she had anything to add she confirmed that she had not.

Background

4.  As noted in the TCAB Decision at [1-6], the Applicant made a torture claim in 2011 which was rejected by the DOI on 14 January 2013.  Her appeal to the TCAB was dismissed on 29 July 2013.  She applied for non-refoulement protection on 29 August 2013 under the Unified Screening Mechanism (“USM”) on all applicable grounds, and the DOI duly notified her that her torture claim under the USM would not be reviewed.  Her non-refoulement claim was therefore assessed on the remaining 3 grounds which eventually led to the TCAB Decision.

5.  The Applicant is a national of Indonesia.  She seeks non-refoulement protection on the basis that her life would be in danger if she is to go back. The Applicant contends that her mother had arranged her to marry the son of the family’s neighbor (Priono).  Upon the Applicant’s refusal, Priono threatened to kill her, leading her to move to a different city and she then took on work in Hong Kong and Macau as a foreign domestic helper.  Notwithstanding the passage of more than 10 years and the fact that the Applicant became married with another Nepali man (and they had a daughter), the Applicant says that Priono was still trying to kill her (and even her husband).  There is however no evidence that harm was actually ever done.  The Applicant’s personal background, the relevant facts and relevant procedural history have been fully set out in the TCAB Decision, which can be viewed through a hyperlink[1].  I shall therefore not repeat them.

Discussion

6.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

7.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement cases 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.  A finding of fact is exclusively within the realm of the TCAB, and 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 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

8.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

9.  The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.   She nevertheless sets out 6 grounds in her affirmation contending that the TCAB Decision should be judicially reviewed.  These grounds seem to have been copied from elsewhere because not all of them seem to relate to the Applicant’s claim.  I nevertheless set them out (as close to the way the Applicant has formulated them as possible) as follows:

(a)   Procedural impropriety – failure to “properly apply para 2 of the UN committee against Torture General Comment No.2 whereby satisfaction of a National states obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event”, whereas the TCAB Decision “focused on whether such reliefs showed merely signs of positive improvement”;

(b)   Procedural impropriety – failure to conduct sufficient inquiry into the relevant country of origin conditions, in particular by failing to consider the Applicant’s serious risk of facing harm from her enemies because of her “political and statistical view”;

(c)   Procedural impropriety / irrationality – failure to give reasons for the assessment based on BOR 2 risk;

(d)   Error / misdirection in law – failure to take into account the considerations of psychological strain and threats to the Applicant;

(e)   Procedural impropriety – failure to consider that the Applicant faces a genuine threat and she may not relocate because the opponent may easily trace her in Indonesia;

(f)    No sufficient basis to conclude that the Applicant and her family members would not be “at risk of being subjected to torture and/or CIDTP upon refoulement” (I assume she had intended CIDTP to mean “cruel, inhuman and degrading treatment or punishment”).

10.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [9-11] and found that on the basis of the same, applying also the correct legal principles in respect of all three applicable grounds [12, 15-17, 18-20, 25-28], the Applicant’s allegations were insufficient to make out any of the applicable grounds [13-14, 21-24, 29].  In particular, the TCAB found that the “centerpiece” of the Applicant’s story was “hard to believe” [13, 23a-b].

11.  Further, the TCAB also concluded that state protection and internal relocation were available on the basis of the available evidence [23c-f].

12.  I consider that none of the 6 grounds put forward by the Applicant in her affirmation are justified or made out.  They are at most self-serving assertions and fail to identify any real errors of law, procedural unfairness or irrationality.  Quite the contrary, it is plain that the TCAB duly took into account all relevant matters including country of origin information, and the TCAB also found as a matter of fact that the Applicant’s case is incredible (which is a conclusion that the TCAB was fully entitled to come to).

13.  The Applicant also sent a letter to the Court dated 30 July 2025 setting out her submissions.  I have fully taken those matters into account but in my judgment it adds nothing to the Applicant’s case; the letter largely regurgitates what has been set out in her affirmation.  The Applicant further says that she is now married with a man in Hong Kong and has a daughter, but it is not something I need to deal with at hand because it does not concern the lawfulness or correctness (in the public law sense) of the TCAB Decision. 

14.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.  The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review 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