SEMIYATI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1234/2021

[2026] HKCFI 2100

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1234 OF 2021

Application for leave to apply for judicial review

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

Following:

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

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

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 13 August 2021 and filed on 2 September 2021, 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 6 August 2021 (“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/2021/HCAL001234_2021_files/the_Board's_Decision.pdf

2.  The Board rejected the applicant’s claim for non-refoulement protection as not substantiated on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 27 May 2021, which rejected the applicant’s non-refoulement claim.

Amendment

3.  In Form 86, the applicant named the Board/ Non-refoulement Claims Petition Office as the putative respondent, when only the Board should be so named.

4.  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 respondent at all.

5.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”.

The applicant’s case

6.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

7.  In sum, the applicant claimed for non-refoulement protection because she feared that if refouled to Indonesia, she would be harmed or killed by her husband due to her relationship with a Mr X, a Nepali permanent resident of Hong Kong. Her husband had mistreated her in the past and made threats to kill her via telephone and via her mother.

Oral hearing

8.  The applicant requested for an oral hearing of the Leave Application and her case was heard on 19 March 2026.

9.  When this court asked the applicant for the grounds of her intended judicial review, the applicant merely replied that she did not want to go back to her home country because her husband would murder her as she had a boyfriend in Hong Kong.

10.  The applicant did not elaborate on the grounds which were stated in Form 86 under the heading “Grounds on which Relief is sought”, but simply confirmed that she would rely on what was stated therein as her grounds for the intended judicial review.

Withdrawal after the oral hearing

11.  After the hearing, the applicant filed an affirmation on 2 April 2026 to withdraw the Leave Application. However, the applicant only stated that she wanted to go back to her country and would go home as soon as possible without indicating that it would be safe for her to return.

12.  There is no evidence to show that the applicant made the said 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.

13.  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.”

14.  Thus, it is right for this court to deal with the Leave Application instead of leaving the action at large. The applicant’s application to withdraw the Leave Application is therefore refused, and this court will proceed to consider the merits of the Leave Application.

Grounds for judicial review

15.  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).

16.  In Form 86 under the heading “Grounds on which Relief is sought”, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test. She also mentioned that her right to life should be protected.

Discussion

17.  Although the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test, she did not state how or why the Board’s Decision was wrong, unfair and unreasonable. It does not help the applicant to establish any ground by just mentioning the right to life either.

18.  In any event, the Board did assess the applicant’s risk of right to life but found, on the credible evidence before it, that the applicant did not face a real risk of being deprived of her right to life if she was refouled to Indonesia.

19.  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 allegations cannot help the applicant at all.

20.  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).

21.  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.

22.  In assessing the appeal by the applicant, the Board arranged an oral hearing on 23 July 2021 and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person.

23.  As can be seen from the Board’s Decision, although the Board found that the applicant’s evidence about her relationship with Mr X was at the vague end due to the applicant’s claim that she did not even know the full name of Mr X and his birthdate, the Board did give the applicant the benefit of the doubt. The Board accepted that the applicant was in a relationship with Mr X, that their relationship was over, and that the applicant’s husband became aware of the applicant’s relationship with Mr X through the applicant’s niece.

24.  The Board also found the applicant’s new claim at the Board’s hearing that her husband had threatened her with a sickle due to her previous relationship with a man in Taiwan not convincing. The Board was of the view that the applicant possibly invented the evidence in an attempt to strengthen the threat her husband posed to her. However, the Board again gave the applicant “a very generous benefit of the doubt” and accepted that she did have an extra-marital relationship with a man in Taiwan, she asked her husband for a divorce on her return to Indonesia, and other evidence in relation to the incident. The Board also accepted that the applicant’s husband was abusive to her, they quarreled and he assaulted her in the past.

25.  However, the Board gave full and detailed reasoning in paragraphs 37 to 43 of the Board’s Decision as to its conclusion that the applicant was exaggerating the risk of harm her husband posed to her. The Board found that the threats of the applicant’s husband were the words of an angry man and there was no real intent on his part to kill or otherwise seriously harm the applicant.

26.  Thus, the Board did not consider, on the credible evidence before it, that the applicant faced a real risk of any of the proscribed forms of harm from her husband if she was refouled to Indonesia. The Board concluded that the applicant had not substantiated a case for non-refoulement protection on any of the applicable grounds under the USM.

27.  The Board did not consider availability of state protection and viability of internal relocation. However, as the Board had found that the applicant was not at any real risk of harm from her husband should she return to Indonesia, it was not necessary for the Board to consider the availability of state protection.

28.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755).

29.  As it was the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it was not necessary for the Board to consider internal relocation.

30.  The finding of facts, including assessment of evidence and risk of harm, was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

31.  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.

32.  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

33.  For reasons aforesaid, the applicant’s application to withdraw the Leave Application is refused and the Leave Application is 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