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

HCAL 160/2023

[2026] HKCFI 2923

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 160 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 documents and the Applicant being absent in open court;

1.  Form 86 be amended, naming only the Torture Claims Appeal Board/Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

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

Observation for the Applicant:

Introduction

1.  By Form 86 filed on 6 February 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 (the “Board”) dated 17 January 2023 (the “Board’s Decision”). By that decision, the Board confirmed the decision of the Director of Immigration dated 8 September 2021 (the “Director’s Decision”), which had rejected her non-refoulement claim 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 understand that the Notice of Hearing issued by post was returned to the High Court. I should mention that it is the Applicant who has failed to discharge her duty to provide and update the Court an address to which correspondence or notice can come to her attention in a timely manner.[2]  In any case, I have considered the merits of the Leave Application based on the materials available before me. [3]

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.[4]  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. Apart from contending she could not go back to her country, the Applicant has failed to identify any valid or effective public law grounds.[5]

5.  In view of the seriousness of the issues involved, I have reminded myself of the enhanced standard required by law. Despite the Applicant did not advance any valid ground for the intended judicial review, I have scrutinized the Board’s Decision for any errors of law, procedural unfairness or irrationality.

6.  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]

7.  First, the primary decision makers are the Director of Immigration and the Board and 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 of Immigration).[7]

8.  The Board was acutely aware of the Applicant’s initial claim that she would be ill-treated or killed by her parents if she returned to Indonesia because she gave birth out of wedlock. The Board was also aware that in the Notice of Appeal, she then claimed that her life would worsen due to her “enemies” whom she referred to as the person who lent her money because she had not paid off the debt. The Board had assessed the material facts and evidence of the Applicant’s claims including the COI materials and rejected the factual basis of her case regarding the so-called threats or harm from her parents or “enemies” be it the alleged loan sharks in Indonesia or her creditor in Hong Kong.

9.  In any event, the Board did and was entitled to find that (1) the dispute between the Applicant and her parents or her creditor was plainly a private matter; (2) there was no evidence that the alleged loan sharks in Indonesia or her creditor in Hong Kong had posed or would pose any form of threat against her upon her return to Indonesia; (3) her claim that she would be killed by her parents or any fear of persecution was not well-founded; (4) reasonable state protection would be available; and (5) it was not necessary to even consider the issue of internal relocation.

10.  Second, there is simply nothing to indicate the Board had failed to take into account any relevant matters. The Board was quite simply entitled to come to the conclusions it did.

11.  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

12.  Accordingly, I 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