ROHIMATUN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1598/2021

[2026] HKCFI 3049

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1598 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 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 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 10 November 2021 and filed on 23 November 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 3 November 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/HCAL001598_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 29 July 2021, which rejected the applicant’s non-refoulement claim.

Amendments

3.  The applicant named the Board and the Director as both the putative respondents and the putative interested parties in Form 86, and spelt the Board’s name wrong.

4.  In fact, only the Board should be named as the putative respondent and only the Director should be named as the putative interested party.

5.  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 name of the putative interested party to “Director of Immigration”.

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, her creditor, Hartoyo, threatened that he would physically harm or even kill her should the debt remained unpaid. At the hearing before the Board, the applicant further claimed that her ex-husband, with whom she had previously had many arguments and who had disapproved of their divorce, still held a grudge towards her and would find her wherever she lived in Indonesia.

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 23 November 2021.

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 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.

13.  In assessing the applicant’s appeal/petition, the Board arranged an oral hearing on 24 September 2021. The applicant was present and thus was given the opportunity to present her case to the Board in person.

14.  The Board had laid out its analysis and findings on the credibility of the applicant’s claims in paragraphs 38 to 58 of the Board’s Decision, and it is not necessary to repeat the same here.

15.  In gist, the Board found that the applicant’s evidence in relation to the loan she had taken out on behalf of her parents was vague and lacking in meaningful detail. The applicant’s evidence was that she knew nothing about the interest rate, the loan period, the basis upon which interest was to be calculated, how much of the principal and/or interest had been repaid, how much was outstanding in total, when her parents first defaulted on the loan repayments, whether or not Hartoyo instituted legal proceedings against her or her family to recover any monies owed, and whether or not Hartoyo had taken any other steps to recover any monies. The Board did not accept the single incident occurring on 21 January 2021 described by the applicant where her mother was assaulted, as the applicant’s evidence on it was inconsistent.

16.  The Board considered the applicant’s lack of any meaningful knowledge on the details of the loan, or her parents’ default on repayment, undermined the credibility of her claims. The Board found that the applicant’s lack of interest in ascertaining whether or not her parents had made any arrangements with the creditor in relation to re-paying any outstanding amount payable, how interest was calculated or critically, whether or not any money on the loan was still payable at all, and if so, what that figure was, to be inconsistent with the applicant’s claimed fear, and indicative of her lack of concern about the loan.

17.  The Board found that even if it were to accept that a loan was taken out in 2019, it had real doubts as to the existence of the loan now. The applicant’s evidence at the Board’s hearing was that she herself was unsure whether or not the loan had been repaid in full or if there was anything left owing on the loan.

18.  The Board also found that the amount of money the applicant remitted to her parents was well in excess of the principal amount owing on the loan and likely covered interest payable over that year, despite that the applicant did not know what the applicable interest rate was.

19.  While the applicant believed that there might still be a loan in existence of an unknown amount, and that she might be harmed as a result of her obligations under the loan not being fully discharged, the Board found that such a belief was insufficient to establish the existence of the loan or her failure to discharge her obligations under it, and such belief was not sufficient to establish a real risk of the relevant harm materializing.

20.  Having considered all the evidence before it, the Board found that the applicant had not established the existence of a loan in Indonesia, the repayment of which she would be held responsible should she return to Indonesia in the reasonably foreseeable future.

21.  The Board further found that even if its conclusion was wrong and there was in fact a presently existing loan for which the applicant would be held responsible, the risk that she faced of being seriously harmed would be trivial. In this regard, the applicant gave evidence that neither her parents nor her creditor had taken any actions to convert the collateral underpinning that loan, despite her creditor’s right to do so. It did not appear that her creditor had taken any other steps to recover any monies owed to him by way of legal proceedings or otherwise. The Board did not accept that the applicant or any of her family members was assaulted by the creditor. Further, there was nothing in the evidence to show that Hartoyo posed a meaningful risk to the applicant should she return to Indonesia.

22.  As to the claimed fear of the applicant from her ex-husband, while the Board accepted that the applicant’s ex-husband might hold a grudge towards her, nothing in her evidence suggested that he posed a real risk of subjecting her to any of the proscribed harm should she return to Indonesia in a reasonably foreseeable future.

23.  Thus, after considering the applicant’s claims both individually and cumulatively, the Board did not consider that the applicant faced a real risk of suffering any of the proscribed harm should she return to Indonesia, and concluded that the applicant’s claims were not made out on any of the applicable grounds under the USM.

24.  The Board did not consider availability of state protection and viability of internal relocation. However, as the Board found that there was no real risk of any proscribed harm to the applicant, it is therefore not necessary for the Board to consider the availability of state protection.

25.  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).

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

27.  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.

28.  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.

29.  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

30.  For reasons aforesaid, 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