HARTATIK RIKA SETYANA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1011/2026

[2026] HKCFI 4525

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1011 OF 2026

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 respondent be amended to “Torture Claims Appeal Board”.

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 and filed on 2 June 2026, 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 25 February 2026 (“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/2026/HCAL001011_2026_files/the_Board's_Decision.pdf

2.  The Board found that the applicant was unable to make out her claim for non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 12 December 2025, which rejected the applicant’s non-refoulement claim.

Amendment

3.  In Form 86, the applicant named “TORTURE CLAIMS APPEAL Board / NON reFoulement claims PetitioN OFFICE” as the putative respondent, when only the Board should be so named.

4.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a respondent at all.

5.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.

Late application

6.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

7.  However, the applicant filed Form 86 on 2 June 2026, which was 3 months and 8 days after the Board’s Decision (made on 25 February 2026). The applicant was hence late for 8 days in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

8.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

9.  The applicant did not make any application for extension of time and provided no explanation for the delay when she filed the Leave Application.

10.  Although a delay of 8 days is not substantial, there is simply no reason for this court to extend the time for the applicant to make the Leave Application when no explanation was given for the delay at all. More importantly, there is no merit in the Leave Application whatsoever.

11.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

12.  However, for the sake of completeness, this court will still deal with the Leave Application as discussed below.

The applicant’s case

13.  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.

14.  In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she feared being harmed or killed by EDI, her ex-husband.

Disposal on paper

15.  The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

16.  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).

17.  The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affidavit/affirmation dated 2 June 2026.

Discussion

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, despite the fact that the applicant failed to advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

20.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 13 February 2026. The applicant was present and was thus given the chance to present her case to the Board in person.

21.  As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. Its assessment on the applicant’s case were laid out in paragraphs 32 to 60 of the Board’s Decision, and it is not necessary to repeat the same here.

22.  In gist, the Board found that the applicant did not suffer any injuries despite the alleged threats from EDI. The applicant had no direct confrontation with EDI after she left Indonesia and her last contact with him was in 2013. The Board found no evidence of state acquiescence in relation to the alleged threat from EDI. The applicant’s feared ill-treatment had not attained a minimum level of severity and there was no genuine and substantial risk of her being subjected to such ill-treatment. Based on the information provided, there was no evidence that there was any well-founded fear of the applicant being persecuted for any Convention reasons.

23.  The Board noted that the applicant’s application for non-refoulement protection was lodged on 16 September 2025, more than 12 years after she learned of the alleged death threats issued by EDI. The Board considered that the very significant delay of the applicant in making her claim called into question the credibility or severity of the alleged threat. As confirmed by the applicant at the Board’s hearing, there was nothing preventing her from approaching the Immigration Department during the 12-year period when she overstayed in Hong Kong. The Board therefore did not find the applicant’s account credible.

24.  Further, the Board found from extensive country of origin information (“COI”) which supported its finding that despite setbacks, the government of Indonesia was determined to uphold the protection of human rights for its citizens through its Constitution, laws and policies. The Board found it evident that state protection was available for the circumstances claimed by the applicant.

25.  Moreover, the Board had laid out its reasons in paragraphs 61 to 68 of the Board’s Decision for its finding that internal relocation was clearly a viable alternative for the applicant.

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

27.  The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

28.  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.

29.  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

30.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.

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