SUKARMI v. TORTURE CLAIMS APPEAL BOARD

HCAL 748/2026

[2026] HKCFI 2730

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 748 OF 2026

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 or counsel in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 30 December 2025”.

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 15 April 2026, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:-

“DECISION FROM TORTURE CLAIMS APPEAL BOARD NON-REFOULEMENT CLAIMS PETITION OFFICE ON DECEMBER 2025”

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 30 December 2025 (“the Board’s Decision”) regarding the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 25 November 2025 (“the Director’s Decision”). The applicant also annexed a copy of the Board’s Decision to her supporting affidavit/affirmation dated 15 April 2026. Thus, it is clear that the Board’s Decision should be the subject matter of the Leave Application.

3.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2026/HCAL000748_2026_files/the_Board's_Decision.pdf

4.  The Board found that the applicant had not made out a case for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board dismissed the applicant’s appeal/petition against the Director’s  Decision and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendments

5.  In Form 86, the applicant named “TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE” as the putative respondents, when only the Board should be named as the putative respondent.

6.  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 respondent at all.

7.  As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision.

8.  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 decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 30 December 2025”.

Late application

9.  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.

10.  However, the applicant filed her Form 86 on 15 April 2026, which was 3 months and 16 days after the Board’s Decision (made on 30 December 2025). The applicant was hence late for 16 days in making the Leave Application.

11.  This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which 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.

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

13.  Although a delay of 16 days is not substantial, there is simply no reason for this court to grant an extension of time for the applicant to file the Leave Application when no explanation was given. More importantly, there is no merits in the Leave Application at all as discussed below.

14.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

15.  However, for the sake of completeness, this court will consider the merits of the Leave Application as discussed below.

The applicant’s case

16.  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.

17.  In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed or killed by her creditor Mr Sukar due to her inability to repay a loan of 200 million Indonesian Rupiah borrowed by her in 2004. The applicant claimed that when she returned to Indonesia in 2025, the creditor and his three underlings visited her twice. They were armed with pistols and sword. They pointed the pistols at her, and threatened to kill her if she did not repay the loan.

Disposal on paper

18.  The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

19.  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).

20.  The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affidavit/affirmation dated 15 April 2026.

Discussion

21.  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).

22.  Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

23.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 24 December 2025. The applicant was present and was thus given the chance to present her case to the Board in person.

24.  As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims.

25.  The Board found that multiple aspects of the applicant’s case were unsatisfactory (see paragraphs 59 to 64 of the Board’s Decision). First, while the Board acknowledged the passage of time, it remained incredible that the applicant was wholly unable to provide most if not all details of her claims. Second, the applicant’s account as to the circumstances leading up to and surrounding her loan with the creditor was vague, imprecise and at times internally inconsistent. The Board did not accept the applicant’s account in this respect. Third, the Board did not accept the applicant’s account of the purported threats from the creditor. The Board did not find the applicant’s account of seeking assistance from the police convincing. Moreover, the Board found the applicant’s account of getting another loan from the BRI Bank in Indonesia in 2025 unreliable.

26.  In view of its findings, the Board found the applicant to be an incredible witness who had fabricated or exaggerated the alleged loan and threats from the creditor in order to substantiate her claim for non-refoulement protection.

27.  Nevertheless, the Board went on to assess the applicant’s claims on the assumption that the Board had accepted the applicant’s case. However, the Board found that the applicant’s appeal/petition still fell to be dismissed.

28.  The Board found that, even on the applicant’s own account, she and her family never sustained any injuries from the creditor. The applicant’s evidence did not support or substantiate the alleged existence, let alone seriousness, of the threats. The Board found that the applicant’s sufferings did not attain a minimum level of severity that warranted international protection. Her fear of the creditor arose only from a private financial dispute, which was not for any Convention reasons. There was no suggestion of state acquiescence in her circumstances.

29.  Further, the Board found that internal relocation was a viable option to the applicant to avoid the creditor and reduce the perceived risk (see paragraphs 71 to 74 of the Board’s Decision). The Board had addressed the applicant’s concerns about being found by the creditor and that she had no money to relocate within the country. The Board was of the view that given the personal circumstances of the applicant, it would not be unduly harsh for her to relocate to another area of the country and to start afresh by earning a living there.

30.  The Board had also gone through reliable country of origin information (“COI”) and found that despite shortcomings in the Indonesian authorities and police, Indonesian authorities had been working hard to crack down on different aspects of illegal activities in recent years. The Indonesian government had demonstrated appropriate commitment to maintaining legal standards in the country. The Board was satisfied that Indonesia was able and willing to protect the rights of its private citizens. There were no indications that the applicant would be denied reasonable governmental protection if she were to return to Indonesia.

31.  Thus, even taking the applicant’s claim to its highest, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

32.  The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

33.  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.

34.  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

35.  For reasons aforesaid, 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