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

HCAL 65/2023

[2026] HKCFI 3008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 65 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 oral submissions by the Applicant 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 17 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 10 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 14 December 2021 (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 attended the oral hearing but had nothing to add.

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.[2]

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.[3]  The Applicant’s grounds (in the form of submissions exhibited to her Affirmation dated 17 July 2025) can be summarized as follows:-

(1)  “I am disagree with the decision made by the Director of Immigration as well as the adjudicator of Torture Claims Appeal Board. I do not think my case has been determined fairly.” (“Ground 1”)

(2)  “Without knowing through how case was determined, it is not easy for me to appeal against the decision. I believe there should have been a proper and fair mechanism that allows unrepresented litigants to understand more about their claim.” (“Ground 2”)

(3)  “… I was never provided with proper legal and language assistance. With my limitation in terms of resources, funding and language capabilities, it has been burden some for a Non-refoulement claimants like me to appeal against the decision. The determination of Appeal/petition has been never read to me on my own language, and I believe such failures in providing proper assistance to Non-refoulement claimants is procedurally unfair. (“Ground 3”)

(4)  “The Respondent’s is in breach of procedural fairness in the following parts:-

(a)  The Respondent’s had unlawfully fettered his discretion by refused my appeal…

(b)  The Adjudicator acted in a procedural unfairness in dealing with my appeal;

(c)  The Respondent’s decisions to refuse my appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness;

(d)  The Respondent’s failed to meet the greater care and duty owed to self-Represented claimants.” (“Ground 4”)

(5)  “The discriminatory act of authorities towards Non-refoulement claimants merely on the basis of quick disposed of Non-refoulement cases is unacceptable and is determinate to the spirit of Judicial system.” (“Ground 5”)

6.  First, as the Applicant had already appealed the Director’s Decision to the Board which was conducted by way of rehearing, the Board’s Decision effectively supersedes the Director’s Decision.[4]  Hence, the Director’s Decision is not a decision which is susceptible to judicial review. The grounds, if directed against the Director’s Decision, must be dismissed.

7.  Second, I have scrutinized the Board’s Decision carefully and come to the view that none of the aforesaid grounds (even if directed against the Board’s Decision) can be established or considered as valid or effective public law grounds.

8.  Most if not all of the grounds merely consist 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]

9.  Ground 2 and Ground 3 have no merit and must be rejected. Neither the high standard of fairness prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings.[6]  The Applicant obviously had the benefit of legal representation in presenting her case to the Director. She was also assisted with an interpreter at the hearing before the Board. She also confirmed that she understood the procedure that would be adopted in her appeal before the Board (see: Paragraph 10 of the Board’s Decision). I also note that the Applicant did not have any particular difficulty in filing the present Leave Application with grounds or submissions being prepared in English.

10.  Third, the Board was acutely aware of the Applicant’s claim that if refouled, she would be at risk of harm or being killed by the Creditor as she owed him a loan and she had no money to repay the same. The Board duly considered the evidence and submissions made by the parties including the Applicant’s oral evidence at the hearing and the relevant COI materials before reaching the findings that there was no evidence to support the existence of the Loan and Verbal Threats. The Board was therefore not satisfied that the Applicant would be subjected to a real risk of proscribed harm including death or torture (see: Paragraphs 34 to 65 of the Board’s Decision). In any case, the Board was of the view that (1) there was nothing to indicate that the Applicant would not be afforded with the requisite level of state protection (see: Paragraph 72 of the Board’s Decision) and (2) internal relocation would be a viable option (see: Paragraphs 90 to 96 of the Board’s Decision).

11.  It follows that the remaining Grounds 1, 4 and 5 have no merit and must also be rejected. 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.

12.  Fourth, 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

13.  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.[7]  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