ENDANG RUSMINI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 196/2022

[2026] HKCFI 1597

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 196 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

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

1.  The Form 86 be amended by naming the Torture Claims Appeal Board / Non-refoulement Claims Petition Office as the only putative respondent and the Director of Immigration as the putative interested party.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 13 April 2022 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”). As stated in the Form, the decision which the Applicant wishes to challenge is the Decision of the Director of Immigration (the “Director”) dated 11 August 2021 (the “Imm Decision”). The Applicant named both the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) and the Director as the proposed respondents.

2.  In the Affirmation filed by the Application in support of the Leave Application (the “Affirmation”), the Applicant stated that she wishes to seek leave for judicial review against the Imm Decision and exhibited a copy of the same.

3.  The Applicant requested an oral hearing which took place on 30 January 2026 (the “Hearing”). At the Hearing, this Court asked the Applicant to clarify whether she intends to seek leave for judicial review against the Imm Decision or the Decision of the Board dated 1 September 2022 (the “Board’s Decision”), or both. The Applicant clarified that she intends to challenge both the Imm Decision and the Board’s Decision.

4.  The Imm Decision is not susceptible to judicial review as it has been superseded by the Board’s Decision once an appeal against it to the Board has been pursued by the Applicant: see Re Moshin Ali [2018] HKCA 549 at para. 45. Thus, I will treat the Leave Application to cover the Board’s Decision only.

5.  I will amend the Form on my own motion to name the Board as the only putative respondent and the Director as the putative interested party.

Background

6.  The Applicant’s background, the basis of her claim and the arguments she advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference.

Discussion

7.  The Applicant has not identified any ground in support of the Leave Application, whether in the Form or the Affirmation.

8.  The relevant legal principles are well established. The Court’s role in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: see Nupur Mst v Director of Immigration [2018] HKCA 524 at para. 14. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: see Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

9.  Having considered all the relevant materials before me, I do not consider the Applicant’s intended challenge against the Board’s Decision to be reasonably arguable with any realistic prospect of success.

10.  I have reviewed the Board’s Decision in detail. The Board had fully considered the Applicant’s evidence and her grounds for challenging the Director’s decision in refusing her claim for non-refoulment protection. On the facts, the Board found that the Applicant’s case was vague and not credible. The Board did not believe the Applicant’s story about the alleged borrowing of loan and the related incidents: see the Board’s Decision paras. 26-27. On the above bases, the Board found that the Applicant would not face any Persecution Risk, BOR 2 Risk, BOR 3 Risk or Torture Risk[2] if she returns to Indonesia and rejected the Applicant’s appeal: see the Board’s Decision paras. 28-37. I do not consider there to be any error of law, procedural unfairness or irrationality in the Board’s Decision.

11.  Leave application of this sort is meant to be a filtering process and this Court is not expected to give elaborated reasons for its decision: see Re Zunariyah [2018] HKCA 14 at para. 23. I have considered all the relevant materials in reaching the present decision.

Conclusion

12.  For the reasons stated above, I will dismiss the Leave Application.

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