SITI KOLISAH v. TORTURE CLAIMS APPEAL BOARD

HCAL 111/2020

[2025] HKCFI 1628

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 111 OF 2020

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 in open court;

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

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 10 January 2020, 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 2 January 2020 (“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/2020/HCAL000111_2020_files/the_Board's_Decision.pdf

2.   The Board decided that the applicant failed to make out her claims for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”), and confirmed the decision of the Director of Immigration (“the Director”) dated 15 May 2018. 

Amendments

3.  The applicant named both the Board and the Immigration Department as the putative respondents and the putative interested parties in Form 86, when only the Board should be named as the putative respondent and only the Director should be named as the putative interested party.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

4.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

5.  In sum, the applicant claimed for non-refoulement protection because she feared being harmed or killed by her maternal uncle and his creditor, as she did not have the money to repay his debt for him.  The applicant also claimed that she was afraid of her uncle because he had attempted to rape her before.

Oral hearing

6.  The applicant requested for an oral hearing of the Leave Application and her case was heard on 25 March 2025.

7.  At the hearing, the applicant merely reiterated that her life would be in danger if she were to return to Indonesia.

Grounds for judicial review

8.  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).

9.  However, the applicant did not advance any ground for her intended judicial review in Form 86 nor in her supporting affirmation dated 10 January 2020.  She merely stated in her affirmation that the Board had disregarded her dangerous situation.

Discussion

10.  It is clear from the Board’s Decision that the Board had fully analysed and assessed her alleged danger in Indonesia.  However, the Board found that the applicant was not a witness of truth and her claims regarding the problems she faced from her uncle were not credible.  Hence, the Board concluded that the applicant would not face any real or personal risk when returned to Indonesia.

11.  It is therefore untrue that the Board had disregarded her dangerous situation.

12.  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).

13.  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 error 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. 

14.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed 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

15.  For reasons aforesaid, 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