KIBTIYAH UMI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1738/2020

[2025] HKCFI 5427

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1738 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 only the Torture Claims Appeal Board / Non-refoulement Claims Petition Office as the Putative Respondent and only 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 28 August 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 18 August 2020 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 22 January 2020.

2.  I amend the Form 86 on my own motion to name only the TCAB as the putative respondent, and only the DOI be named as the putative interested party.

3.  The Applicant requested for a hearing of this application and she attended the same. 

Background

4.  The Applicant is a national of Indonesia.  She seeks non-refoulement protection on the basis that she would be harmed or even killed if she is to go back.  Apparently the Applicant’s ex-husband borrowed a sum of money from a money lender and he was unable to repay.  He could not be found or located. The money lender then sought recourse against the Applicant especially because the ex-husband used her land deeds as collateral for the loan.  The money lender threatened to kill the Applicant if she should fail to repay.  The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them.

Discussion

5.  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.

6.  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. 

7.  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.

8.  The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.   She merely stated in her affirmation that the decision was “unfair and unreasonable”.

9.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [5-29] and found that on the basis of the same, applying also the correct legal principles in respect of all the applicable grounds [52-54, 58-61, 63-64, 67-69], the Applicant’s allegations were insufficient to make out any of the applicable grounds [30-44, 45-49, 55-57, 62, 65-66, 70-72].  In particular, the TCAB found certain important aspects of the Applicant’s case and evidence to be “elusive” and “flimsy” [34, 37], and the Applicant’s alleged fear of the risk to her life “could not be genuine and substantial” [49].  These were conclusions that the TCAB was fully entitled to reach.

10.  Importantly, the TCAB also concluded that internal relocation was available on the basis of the available evidence [27, 42].

11.  At the hearing the Applicant told me that she had originally intended to return to Indonesia this year, but her sister told her that it was still dangerous for her to return.  This however has nothing to do with the issues I need to deal with.

12.  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