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

HCAL 975/2024

[2026] HKCFI 3198

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 975 of 2024

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;          or
	consideration of the documents and oral submissions by the Applicant in open court;

The applicant’s application for leave to apply for judicial review be dismissed. 

Observations for the Applicant:

Background

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 21 June 2024, 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 28 April 2023 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 14 June 2022 rejecting the applicant’s non-refoulement claim based on all applicable grounds[1]. The Board’s Decision is set out in the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL000975_2024_files/the_Board's_Decision.pdf

2.  The basis of the applicant’s claim was that, if refouled to Indonesia, she would be harmed or killed by her maternal uncle over an alleged outstanding debt owed by her parents.  The 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. 

3.  The applicant has requested for an oral hearing.  On 11 February 2026, the applicant filed an affirmation requested for the cancellation of the Leave Application.  In the circumstances, this court will dispose of the Leave Application on paper. 

Discussion

4.  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. 

5.  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.  Although the applicant attached a 2-page documents entitled as “GROUNDS” to the supporting affirmation, they were only concerned with the applicant’s general dissatisfaction with the Board’s Decision.  Apart from this, the applicant’s Form 86 and the supporting affirmation provided no such grounds. 

6.  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, as the applicant was absent from the hearing, the Board therefore determined her appeal in her absence.  After having considered all the documentary materials before it, the Board found that there was no reliable evidence that Uncle Warti would harm or kill the applicant if she were refouled.  The past ill-treatment failed to reach the requisite level of severity.  It further found that state relocation and internal relocation would be 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. 

7.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a very high standard of fairness.  The grounds that applicant provided in his Form 86 were not valid grounds.  Hence, I find that 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 any realistic prospects of success such that would enable this court to grant leave[5].

Withdrawal application

8.  Apart from the application to withdraw the Leave Application referred to above, there is nothing outstanding in this action.  In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471; Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140. 

Recent Removal

9.  According to a memo dated 17 March 2026, before the applicant was removed, she was also to sign a standard form memo to the court, to confirm that whether she wished to provide her updated address for future correspondence.  The applicant refused to sign on it. 

Order

10.  The applicant’s application for leave to apply for judicial review be 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