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HCAL 2328/2023
[2026] HKCFI 4893
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2328 OF 2023
BETWEEN
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Angga Dwi Susanti |
Applicant |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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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”
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 22 December 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 15 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/2023/HCAL002328_2023_files/the_Board's_Decision.pdf
2. The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 18 July 2023 and confirmed the same, which rejected the applicant’s non-refoulement claim.
Amendment
3. In Form 86, the applicant named herself and “TORTURE ClAiM APPEAL BOARD / NON_REFOUlMENT ClAiM PETITION OFFICE” as the putative respondents, 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 respondent at all.
5. Thus, this court makes an order on its own motion to amend the name of the putative respondent 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 if refouled to Indonesia, she would be at risk of harm from her former husband Imam Safii.
Disposal on paper
8. 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
9. 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).
10. The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 22 December 2023.
Discussion
11. 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).
12. Thus, despite the fact that the applicant failed to advance any 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.
13. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 6 November 2023. The applicant was present and was thus given the chance to present her case to the Board in person.
14. As can be seen from the Board’s Decision, the Board had carefully considered the applicant’s case, and had given full and detailed reasoning in rejecting the applicant’s claims. The Board’s evaluation of the applicant’s evidence was laid out in paragraphs 27 to 33 of the Board’s Decision, and it is not necessary to repeat the same here.
15. In gist, the Board was willing to accept the essential basis of the applicant’s claims. However, the Board found that the applicant had not seen her former husband for over ten years and had no recent knowledge of his circumstances, including his current whereabouts. Having no contact with him or anyone who knew him since 2019, the Board considered that the applicant’s ongoing fears of her former husband was speculative. Even accepting that the applicant’s former husband was violent during their short cohabitation in 2012, the Board was not satisfied that there was an ongoing real risk to the applicant some eleven years since she last saw him.
16. Even accepting that the applicant’s former husband had threatened to harm members of her family from 2014 onwards, he had never done so. Thus, the Board found that her former husband was a person who made empty threats that he did not intend to act upon. The Board considered it highly likely that his threats to kill the applicant if she refused to re-marry him were similarly empty and did not represent a real intention to kill her. The Board was not satisfied that the applicant had been at real risk of harm from her former husband at any time since she stopped residing with him in 2012.
17. Moreover, the Board explicitly stated in paragraph 31 of the Board’s Decision that even if it were wrong in the findings as summarized above, the Board was satisfied that any risk of harm to the applicant would be restricted to her former place of residence. There was no basis on which to found that her former husband would have the means or the capacity to locate the applicant should she return to Indonesia but relocate to another area. The Board had given further reasons in paragraphs 32 and 33 of the Board’s Decision for its conclusion that it would be reasonable for the applicant to relocate to avoid any harm from her former husband.
18. Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.
19. Although the Board did not consider state protection for the applicant, it was unnecessary to make findings on the availability of state protection as the Board found that the applicant did not face any real risk of harm from her former husband.
20. The finding of facts relating to a non-refoulement claim, including the assessment of evidence 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.
21. 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.
22. 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
23. For reasons aforesaid, the Leave Application is dismissed.
Dated the 26th day of August 2026
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( Gladys 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: 26/08/2026
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: 26/08/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 21993
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 565/23 (T1S110)
(formerly RBCZ 5000552/23)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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