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

HCAL 58/2023

[2026] HKCFI 3007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 58 of 2023

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 the documents and the Applicant being absent in open court;

1.  Form 86 be amended, naming the Torture Claims Appeal Board/Non-refoulement Claims Petitions Office as the Putative Respondent and adding 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 Form 86 filed on 16 January 2023, the Applicant seeks leave to apply for judicial review (the “Leave Application”) of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 4 January 2023 (the “Board” and the “Board’s Decision”). By that decision, the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration dated 19 April 2022 (the “Director’s Decision”), which had rejected her non-refoulement claims on all applicable grounds under the Unified Screening Mechanism (“USM”).

2.  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. It is not necessary for me to repeat the same here. Unless otherwise specified, the abbreviations and descriptions used in the Board’s Decision, the hyperlink[1] to which is included below, are also adopted herein.

3.  The Applicant did not attend the oral hearing. I have therefore considered the Leave Application in respect of the Board’s Decision based on the materials available before me.[2]

Discussion

4.  Judicial review does not operate as a further avenue of appeal. The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision. The primary decision makers are the Director of Immigration (the “Director”) and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing 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 error of laws, procedural unfairness or irrationality in the decision of the Board.[3] 

5.  In seeking to challenge the Board’s Decision, the Applicant ought to have clearly and precisely identified the grounds relied upon in the Form 86 and in her supporting affirmation.[4]  The Applicant’s grounds can be summarized as follows:-

(1)  “Procedural Impropriety – the TCAB did not consider my fear, that why I would not return to my country, the TCAB assessed my claim under Torture risk, BOR 2 and 3 risk and persecution risk, the TCAB failed to proper assessed my claim under BOR 3 risk that my life would be danger.” (“Ground 1”)

(2)  “Procedural Impropriety – the TCAB consider my claim and refused that my claim is not established, my claim low inten[sity] and private and personal problem against elder brother and my husband because of my affair with ex boyfriend my life would be at danger by them upon refoulement.” (“Ground 2”)

(3)  “Failure to consider the country of origin condition that authority of my country would not able to protect me.” (“Ground 3”)

6.  I have scrutinized the Board’s Decision carefully and come to the view that none of the aforesaid grounds can be established or considered as valid or effective public law grounds.

7.  First, Ground 1 and Ground 3 are untrue and must be rejected:-

(1)  The Board had duly considered and assessed the Applicant’s claim specifically under BOR 3 Risk before concluding the same had failed (see: Paragraphs 76 to 82 of the Board’s Decision).

(2)  Relevant COI materials and news reports were duly considered by the Board before it concluded that reasonable state protection would be available (see: Paragraphs 51 to 70 of the Board’s Decision).

8.  Second, the Board was acutely aware of the Applicant’s claim that her life would be in danger if she was to be returned to Indonesia in that she would be harmed or killed by her elder brother and husband because of her extra marital affair in Hong Kong. The Board duly considered the evidence and submissions made by the parties including the Applicant’s oral evidence and the relevant COI materials before finding that her intention to seek protection in Hong Kong was suspicious. The Board was therefore entitled to conclude that (1) the ill-treatment (if any) did not attain a minimum level of severity as she had suffered no physical or mental injury from her elder brother and husband (see: Paragraphs 78 and 79 of the Board’s Decision); (2) the dispute was purely a private or family matter and there was no foreseeable, real personal and present risk of proscribed harm if she was to be refouled (see: Paragraphs 50 and 90 of the Board’s Decision) and (3) reasonable state protection would be available.

9.  It follows that Ground 2 also has no substance or merit. The same merely consists of generic, vague and/or unparticularized assertions without reference to any underlying facts or matters establishing why, how and where each of those complaints arise in relation to the Board’s Decision. General assertions without particulars are not effective grounds and cannot assist the Applicant.[5]  In any case, the Board did properly and duly consider the Applicant’s claim with adequate reasons provided. It was simply entitled to come to the conclusions it did and reject the Applicant’s claim.

10.  Third, in all circumstances, I can discern no error of law or procedural unfairness or irrationality on the part of the Board in the assessment and rejection of the Applicant’s claim.

Conclusion

11.  Accordingly, I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success.[6]  I dismiss the 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