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HCAL 995/2022
[2026] HKCFI 2115
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 995 OF 2022
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BETWEEN
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Eka Praniti Bt Wardinah Darma |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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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 (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. The applicant’s application to withdraw the application for leave to apply for judicial review be refused.
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 26 September 2022, 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 8 September 2022 (“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/2022/HCAL000995_2022_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 22 November 2021, which rejected the applicant’s non-refoulement claim.
The applicant’s case
3. The applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed or killed by her husband as he knew she was having an extramarital relationship with another man.
Withdrawal of the Leave Application
4. Before the Leave Application was dealt with, the applicant filed an ex-parte application by way of her affirmation dated 13 February 2026 to withdraw the Leave Application.
5. As stated in the applicant’s said affirmation, she wanted to withdraw her Leave Application because she wanted to go back to her country. However, the applicant did not indicate in her affirmation that it was safe for her to return or her problems in her home country had been resolved.
6. There is no evidence to show that the applicant made the withdrawal application other than out of her own volition. With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing of the Leave Application even though she had previously requested one.
7. However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-
“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”
8. Thus, it is not right to leave the action at large. The applicant’s application to withdraw the Leave Application is therefore refused and this court will proceed to deal with the Leave Application.
Grounds for judicial review
9. 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).
10. The applicant did not advance any grounds for the intended judicial review in her Form 86. In her supporting affirmation dated 26 September 2022, the applicant merely mentioned that “TCAB DID MANY ERROR IN HIS DECISION”.
Discussion
11. First of all, the applicant’s assertion in her affirmation dated 26 September 2022 that the Board did many errors was advanced without any particulars.
12. The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. Thus, such general allegation cannot help the applicant at all.
13. 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).
14. Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.
15. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 24 June 2022 and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person.
16. As can be seen from the Board’s Decision, the Board had questioned the applicant in detail about her story, including the alleged online relationship with a man called Rusmin who lived in Taiwan at the material time, how her husband found out their relationship and the threat her husband posed on her through telephone, etc. The Board found that the applicant had provided evidence with sufficient detail and the Board accepted the applicant as a reliable and credible witness.
17. However, the Board had laid out its reasons in paragraphs 66 to 72 of the Board’s Decision for concluding that there was no evidence to suggest that the threats or disapproval from the applicant’s family was such to amount to serious harm, or that there was a real risk of such future harm from the applicant’s family.
18. In relation to the claimed risk of harm from the applicant’s husband, the Board had discussed in paragraphs 73 to 78 of the Board’s Decision the past behavior of the applicant’s husband, the actions he took after learning of the applicant’s relationship with another man, and the applicant’s intention not to seek a reconciliation with her husband but to proceed with divorcing her husband. The Board found on the evidence submitted by the applicant that she did not face a real risk of serious harm, torture, CIDTP[1] or death at the hands of her husband, or at the hands of anyone else, at the time of the Board’s Decision or in the reasonably foreseeable future if she was returned to Indonesia.
19. Further, the Board found from reliable country of origin information (“COI”) that although there were reports of police corruption and limitations, overall, the applicant did have access to adequate police protection.
20. The Board also assessed the viability of internal relocation for the applicant as a matter of caution. The Board had given its reasons in paragraph 81 as to why it concluded that, in the event that the applicant faced a real risk of serious harm by her husband or by anyone else in her home area, the applicant could reasonably and safely relocate to, say, Surabaya or Semarang, within Indonesia and to re-establish herself in the country.
21. Thus, the Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.
22. The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
23. 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.
24. 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
25. For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed.
Dated the 15th day of April 2026
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( Teresa NG )
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 his 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/Handed to the applicant/the applicant’s solicitors on: 15 April 2026
Applicant’s ref. no:
Nil |
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Sent/Handed 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: 15 April 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 19380/21/12/28/I2394
Director of Immigration
Putative interested party’s ref. no.: QA T/C 1790/21 (formerly RBCZ 412/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Cruel, inhuman or degrading treatment or punishment
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