HARYUNI AHMAD CHOIRI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  The Form 86 is amended on the Court’s own motion, adding “/Non Refoulement Claims Petition Office” after the words “Torture Claims Appeal Board”; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Indonesia.  By a Form 86 filed on 30 June 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 30 June 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision said by her to be one the Torture Claims Appeal Board (“TCAB”), but which is one of the Non-Refoulement Claims Petition Office (“NRCPO”), made on 10 June 2020 (“the NRCPO Decision”)[1].

2.  I will use the abbreviations and definitions from the NRCPO Decision unless otherwise specified herein.  

3.  The Applicant sought an oral hearing of her application, which took place and which she attended on 27 August 2025.  She said she had nothing to add in addition to the matters set out in the papers.

4.  I have amended the Form 86 of my own motion to reflect the role of the NRCPO as a Putative Respondent.

Background

5.  This is set out in the NRCPO Decision and in the USM 1322 Decision (defined below, and which decision is not the subject of this leave application).  While I will not repeat the contents thereof, in summary and in relation to the assessment of her claim:

(1)  The Applicant claimed non-refoulement relief on the basis that if she were sent back to Indonesia she would be harmed or killed by her husband, Winarno;

(2)  The claim was assessed on the grounds of Torture Risk[2], BOR 3 Risk[3], and Persecution Risk[4] and was rejected by the Director of Immigration (“Director”) in a decision dated 25 March 2015 (“Director’s 1^st Decision”);

(3)  The Applicant appealed/petitioned to the TCAB/NRCPO.  The latter determined after a hearing that the Applicant’s claim for non-refoulment protection failed, rejected her appeal/petition, and confirmed the Director’s 1^st Decision in a decision dated 4 November 2016 (“USM 1322 Decision”)[5].  No further steps were or have been taken by the Applicant in relation to the USM 1322 Decision;

(4)  The Director by a letter dated 29 November 2016 invited the Applicant to submit additional facts relating to an assessment of BOR 2 Risk[6]. As no such submissions were received by the deadline of 13 December 2016, or indeed by 20 December 2016, the Director in a decision of the latter date (“the Director’s Further Decision”) found that the Applicant had failed to establish BOR 2 Risk in relation to her non‑refoulement claim; and

(5)  The Applicant then petitioned to the NRCPO for relief against the Director’s Further Decision.  The petition was dealt with by the same adjudicator who had earlier issued the USM 1322 Decision, who held a hearing on 7 May 2020 and subsequently issued the NRCPO Decision, in which it was held that the Applicant had not made out a case of BOR 2 Risk, dismissed the petition, and confirmed the Director’s Further Decision.

Legal Principles

6.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep.  HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

7.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers.  The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them.  While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB/NRCPO.  (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

8.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

9.  Both the Form 86 and the Affirmation (which merely says that the Applicant does not agree with the NRCPO Decision) do not identify any grounds of judicial review, or advance any allegation of procedural unfairness in relation to, and/or of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the NRCPO Decision.

10.  Nevertheless, given the seriousness of the issues at hand, I have considered the NRCPO Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

11.  The NRCPO set out the Applicant’s procedural history (including that she had, at the hearing, indicated that she did not need the hearing to be adjourned and had no further information to be provided), followed by the Applicant’s case (Paragraphs 1 to 16).  After an explanation of the structure of assessment, the NRCPO went on to assess the information/evidence given by the Applicant and found that the information/evidence she had supplied in relation to material aspects of her case was not credible, which would justify the dismissal of her non‑refoulement claim based on BOR 2 Risk (Paragraphs 17 to 28).  However, even if it accepted the information set out in the Applicant’s NCF, her claim would be dismissed as on the whole (and having considered and assessed evidence and claims as to events and matters that were said to have happened since the USM1322 Decision and the Director’s Further Decision), the risk of harm was assessed to be low and the feared ill-treatment was unlikely to materialise.  It also found that on the facts (including evidence adduced at the hearing) internal relocation, including to Jakarta, was viable and would not be difficult for her (Paragraphs 29 to 53). Given the NRCPO’s assessment of the risk of harm, she did not face a genuine and substantial risk of being subjected to arbitrary deprivation of her life upon return to Indonesia.  As a result, BOR 2 Risk had not been made out, the petition was dismissed, and the Director’s Further Decision was confirmed (Paragraphs 54 to 58).

12.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision, and that justifies the grant of leave.  This is especially so in relation to the assessment, reasoning, and findings regarding risk of harm and internal relocation, which are matters primarily within the province of the decision-making body.  Nor is there hence any public law basis to vitiate the NRCPO’s consequent conclusions regarding BOR 2 Risk.

13.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success. 

Conclusion

14.  In the circumstances, I have made the orders above, including that the 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