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HCAL 1738/2021
[2026] HKCFI 2865
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1738 of 2021
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BETWEEN
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Senen Rohani Bt Mirin |
Applicant |
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and |
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Torture Claims Appeal Board / |
Putative |
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Non-Refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge Levy:
1. The Form 86 be amended on the court’s own motion.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 22 December 2021, 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 2 December 2021 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 5 July 2021 on all applicable grounds[1]. The Board’s Decision can be viewed at the following hyperlink: -
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001738_2021_files/the_Board's_Decision.pdf
2. In the Form 86, the applicant named the Board and the Immigration Department as the proposed respondents and interested parties. As the Board should have been the proper putative respondent, and the Director the proper putative interested party, the Form 86 shall be accordingly amended on the court’s own motion.
3. The basis of the applicant’s claim was that, if refouled to Indonesia, she would be harmed or killed by the loan shark for an unpaid loan. 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 March 2026. At the hearing, the applicant attended the hearing in person.
Discussion
5. A leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision.[2] It is therefore 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. No such grounds were provided in either the applicant’s Form 86 or the supporting affirmation. On the day of the hearing, the applicant filed a supplemental affirmation exhibiting a written submission. In it, the applicant alleged generally that the Board acted unreasonably, irrationally and unfairly.
7. At the hearing, the applicant stated that she did not want to go home as she was scared.
8. 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 that the applicant’s evidence was generally consistent and accepted her account of events. However, the Board found that there was no basis for the applicant’s fear of risk of harm if refouled as the past ill-treatment did not meet the requisite level of suffering. The Board further found that both state protection and internal relocation were reasonably available. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors
9. 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 allegations stated in the written submission were vague and too general as to constitute valid grounds. In the circumstances, 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].
Orders
10. The Form 86 be amended on the court’s own motion.
11. The applicant’s application for leave to apply for judicial review be dismissed.
Dated the 29th day of May 2026
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( Alfred CHAN )
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 29/5/2026
Senen Rohani Bt Mirin
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 29/5/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 18326/21/7/126/I2093
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 630/21 (Formerly RBCZ 343/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] The applicable grounds are risk of torture under Part VIIC of the Immigration Ordinance (“torture risk”) , BOR 2 risk (this refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”), BOR 3 risk (this refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR) and persecution risk (This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol) under the USM (This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293.
[2] Re Zunartyah [2018] HKCA 14 at [23].
[3] Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015, 22 December 2016 at [142].
[4] Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.
[5] Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676
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