YULIANI, FARIDA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1928/2023

[2026] HKCFI 1378

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1928 OF 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

2.   The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

3.   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 October 2023, 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 13 July 2023 (“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/2023/HCAL001928_2023_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 24 November 2021 and confirmed the same.

Amendments

3.  In Form 86, the applicant named “Torture Claims Appeal Board non-refulement Claims Petition Office” as both the putative respondent and the putative interested party.

4.  In fact, the Board and the Director should be named as the putative respondent and the putative interested party respectively.

5.  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 putative party at all. 

6.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

The applicant’s case

7.  The applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed or killed by a loan shark and his men due to the debt owed by her father.

Late application

8.  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.

9.  However, the applicant filed Form 86 on 26 October 2023, which was 3 months and 13 days after the Board’s Decision (made on 13 July 2023).  The applicant was hence late for 13 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.

10.  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.

11.  The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application.

12.  Thus, there is simply no reason for this court to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made.  More importantly, there is no merits in the intended judicial review as discussed below.  The Leave Application can therefore be dismissed on the ground of being made out of time alone.

Withdrawal of the Leave Application

13.  Before the Leave Application was dealt with, the applicant filed an ex parte application by way of her affirmation dated 20 October 2025 to withdraw the Leave Application.  

14.  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 that it was safe for her to return or her problems in her home country had been resolved.  

15.  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.

16.  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.”

17.  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

18.  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).

19.  However, the applicant did not advance any grounds for judicial review in Form 86, nor in her supporting affirmation dated 26 October 2023.  The applicant only mentioned in her affirmation that her life was in danger because of inheritance struggle and the loan sharks would kill her as she could not repay the debt.

Discussion

20.  First of all, it was never the applicant’s case before the Board that her life was in danger due to “inheritance struggle”.  The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.

21.  Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition. 

22.  Thus, the applicant cannot rely on any materials not placed before the Board as a ground for her intended judicial review, and there is no reason for this court to re-assess her non-refoulement claim based on any new evidence.

23.  The applicant’s alleged risks from the loan shark had been assessed but rejected by the Board.  If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

24.  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, supra).

25.  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.

26.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 7 March 2023 but the applicant was absent.  The Board directed that the applicant be given notice of its intention to determine the appeal/petition without a hearing, and the applicant was required to provide a written explanation for her failure to attend the hearing within 7 days.  However, the applicant did not respond to the Board’s notice by the deadline.  Hence, the Board proceeded to determine her appeal/petition based on all the available evidence before it.

27.  As can be seen in the Board’s Decision, the Board found many of the applicant’s core claims to be lacking in details, vague or implausible.  In view of the applicant’s failure to attend the hearing and her reliance on hearsay evidence unsupported by other credible evidence, the Board was unable to attach any weight to her claims relating to the past treatment she and her parents experienced at the hands of the loan shark and his men.

28.  Nevertheless, the Board went on to assess the applicant’s case on the assumption that it were to give some credence to the applicant’s factual claims as set out in her Non-refoulement Claim Form and record of interview.  However, the Board found that the applicant still could not make out her claims for non-refoulement protection.

29.  The applicant’s fear of returning to Indonesia only arose from her father’s inability to repay his long-outstanding debt to the loan shark, which was a personal matter.  There was no evidence to show that the loan shark and his men were acting in an official capacity or acted with the acquiescence of the state.  The treatment suffered by the applicant was not serious and did not amount to torture as defined in the Immigration Ordinance, or reached the minimum level of severity.  The experiences of the applicant and her fear of ill-treatment did not amount to persecution for a Convention reason.  There was no evidence to show that the loan shark and his men had a real intention to serious harm or kill the applicant and/or her parents.

30.  Further, the Board found that the applicant did not seek assistance from the police in Indonesia regarding the loan shark.  The Board found from country of origin information (“COI”) that while corruption in the police was reported, efforts had been made to deal with the issue.  The Board was of the view that the applicant could expect reasonable state protection on returning to Indonesia if it became necessary and she chose to avail herself of it.

31.  Moreover, the Board considered that even if the applicant had been able to show that she faced a real or genuine risk of harm as claimed, it would have found that such risk was confined to the local area where she had lived.  There was no evidence that the loan shark or his men would be able to locate the applicant in the large urban centres of Indonesia.  The Board found that it would not be unreasonable or unduly harsh for the applicant, being young with nine years of formal education and work experience as a domestic helper in Hong Kong, to relocate elsewhere in Indonesia to avoid the perceived risk from the loan shark.

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

33.  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.

34.  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. 

35.  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

36.  For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed for being made out of time and devoid 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