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BETWEEN
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Linda-Harmonis |
Applicant |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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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. 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 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 18 July 2024, 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 21 December 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/2024/HCAL001151_2024_files/the_Board's_Decision.pdf
2. The Board found that the applicant’ claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board rejected the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 21 September 2023, which rejected the applicant’s non-refoulement claim.
Amendments
3. In Form 86, the applicant named the Board and “Non-Refoulement Claims Petition Office” as both the putative respondents and the putative interested parties.
4. In fact, only the Board should be named as the putative respondent and the Director should be named as the putative interested party.
5. The Non-refoulement Claims Petition Office should not be named as a party at all, as it is just an office providing administrative and secretariat support to the adjudicators of the Board.
6. This court therefore 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”.
Late application
7. 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.
8. However, the applicant filed Form 86 on 18 July 2024, which was more than 6 months after the Board’s Decision (made on 21 December 2023). The applicant was hence late for more than 3 months 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.
9. 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.
10. The applicant did not make any application for extension of time and provided no explanation for the delay when she filed the Leave Application. At the oral hearing before this court on 9 December 2025, the applicant said that she did not receive the Board’s Decision by post. She went to the Board’s office in Cheung Sha Wan to ask about the determination after she had waited for the decision for months. She only collected the Board’s Decision one month before she made the Leave Application.
11. The delay of more than 3 months is significant, and the explanation given by the applicant is not satisfactory. The applicant confirmed that the address she provided to the Board was correct, hence the reason why she did not receive the Board’s Decision by post remained unexplained. More importantly, there is no merits in the intended judicial review at all as discussed below.
12. 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.
13. However, for the sake of completeness, this court will still examine the merits of the Leave Application.
The applicant’s case
14. 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.
15. In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed or killed by her husband as she refused to reconcile with him.
Oral hearing
16. The applicant requested for an oral hearing of the Leave Application, and her case was heard on 9 December 2025.
17. At the hearing, apart from explaining the reasons for the delay in making the Leave Application, the applicant said that she could not go back to her home country as her husband would kill her. She added that her parents would not accept her because they found out that she liked the same sex.
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. The applicant did not advance any ground for her intended judicial review in Form 86. In her supporting affirmation dated 18 July 2024, the applicant stated that she did not want to go back to Indonesia as her life was in danger, her husband often hit her and was temperamental. The applicant also stated that her husband knew that she had a boyfriend in Hong Kong and she was scared that her husband would kill her.
20. At the oral hearing, apart from saying that her husband would kill her, the applicant added that her parents would not accept her as they found out that she liked the same sex.
Discussion
21. First of all, the applicant’s danger from her husband had been duly assessed but rejected by the Board. If she intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.
22. The allegation that her parents would not accept her as they found out that she liked the same sex was not raised before the Board.
23. As held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, 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.
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 [2018] HKCA 524).
25. Thus, the applicant cannot ask this court to re-assess the facts of her case, but this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irregularities.
26. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 18 December 2023. The applicant was present at the hearing and had the chance to present her case to the Board in person.
27. After careful consideration of the applicant’s evidence, the Board considered that the applicant’s case was only a mild case of domestic violence. The threat uttered by her husband to kill her and to take away their son was clearly out of spur of the moment when he found out that she had a boyfriend in Hong Kong. It was the applicant’s own evidence that their son continued to live with her parents, and her husband had never done anything indicating that he would harm their son or any of her family members because the applicant refused to reconciliate with him.
28. Regarding the assessment of the applicant’s risks on the applicable grounds of the USM, the Board found nothing in the applicant’s case that suggested her treatment fell within the meaning of torture under section 37U of the Immigration Ordinance. Her case had nothing to do with any of the Convention reasons. The injuries she sustained were not serious at all. The Board considered that the applicant did not face a real risk of any of the proscribed forms of harm upon refoulement.
29. The applicant had never sought assistance from the police because she believed the police would not help since it was only a case of domestic violence. However, the Board found from country of origin information (“COI”) that despite the incompetence and ineffectiveness of the police, the Indonesian government did take measures to improve the Indonesian police in terms of efficiency and concern for human rights.
30. Moreover, the Board found that the applicant, being a healthy and young person with 12 years of formal education and around 2 years of work experience both in Indonesia and Hong Kong, could reasonably relocate to other parts of her country other than her hometown to avoid her husband.
31. Thus, the Board concluded that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the USM.
32. The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision. The applicant’s alleged dangerous situations had been fully considered but rejected by the Board. 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 also for devoid of merits.
Dated the 30th day of December 2025
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( Irene LEE )
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: 30 December 2025
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:
30 December 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 22219
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 881/23
(Formerly RBCZ 5000835/23)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1