VERA NINGSIH BT SUMARNO v. TORTURE CLAIMS APPEAL BOARD

HCAL 1442/2023

[2025] HKCFI 5407

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1442 OF 2023

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 in open court;

1.  On this court’s own motion, the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 4 May 2023”.

2.  The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

3.  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 and filed on 17 August 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision of the Torture Claims Appeal Board (“the Board”) dated 14 May 2023.

2.  However, the Board’s decision was dated 4 May 2023 (“the Board’s Decision”) instead of 14 May 2023. The applicant confirmed at the oral hearing before this court on 2 September 2025 that the Board’s decision is the subject of the Leave Application. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001442_2023_files/the_Board's_Decision.pdf

3.  The Board found that the applicant’s application for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”) was not made out. Hence, the Board refused the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 13 December 2021, which rejected the applicant’s claim for non-refoulement protection.

Amendment

4.  As aforesaid, the decision in respect of which relief is sought should be the Board’s Decision. Thus, on this court’s own motion, it is so amended.

Late application

5.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

6.  However, the applicant filed Form 86 on 17 August 2023, which was 3 months and 13 days after the Board’s Decision (made on 4 May 2023). The applicant was hence late for 13 days in making the Leave Application.

7.  This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

8.  The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application. At the oral hearing before this court on 2 September 2025, the applicant simply said that she did not know the procedure.

9.  Since a delay of 13 days is not substantial, this court will not take issue on that but will focus on the merits of the applicant’s case. However, there is no merits of the intended judicial review as discussed below.

10.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

11.  However, for the sake of completeness, this court will still examine the merits of the Leave Application.

The applicant’s case

12.  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.

13.  In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, her ex-husband Nedi’s creditor would harm or kill her as Nedi had failed to repay the loan and she had agreed to be the guarantor.

Withdrawal at the oral hearing

14.  The applicant requested for an oral hearing of the Leave Application and her case was heard on 2 September 2025.

15.  The applicant informed this court that she had written a letter dated 18 August 2025 to the High Court to withdraw her intended judicial review. In any event, she also applied to withdraw the Leave Application at the oral hearing.

16.  The applicant did not give any reason for the withdrawal application in her said letter save that she would like to go back to her country Indonesia as soon as possible.

17.  At the oral hearing, the applicant gave the reason that she could move to stay in her uncle’s place in another part of Indonesia and then she would be safe. However, her problem in Indonesia had not been resolved but she would not take care of Nedi’s debt any more.

18.  There is no evidence to show that the applicant made the above withdrawal applications other than out of her own volition. With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application.

19.  However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

20.  Thus, this court should deal with the Leave Application instead of leaving the action at large by granting leave to withdraw to the applicant, especially when she said her problem in her home country had not been resolved.

Grounds for judicial review

21.  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).

22.  The applicant did not advance any ground for the intended judicial review in Form 86. In the supporting affirmation dated 17 August 2023, she stated several grounds for the intended judicial review, which are summarised as follows:

(1)  The adjudicator did not consider her claim and directly dismissed it. He did not even take time or did not think about her life;

(2)  The adjudicator did not accept documents that the applicant submitted because they were all in the applicant’s mother language;

(3)  The applicant requested time to translate the documents to English and also for her own preparation, but her request was refused.

(4)  The translator did not help her at all. He became angry when the applicant did not understand him.

(5)  The interpreter asked her not to take long time for the interview as he had another job.

23.  At the oral hearing, the applicant did not advance any further grounds nor elaborate on any grounds stated in the affirmation, as she just wanted to return to her home country.

Discussion

24.  First of all, the adjudicator of the Board hearing the applicant’s case was in fact a female, not a male. It is not clear whether the applicant had mistaken the identity of the adjudicator.

25.  The applicant asserted that the adjudicator did not consider her claim and directly dismissed it, and “HE” did not even take time or did not think about her life. The applicant also complained about the adjudicator’s refusal to accept her documents which were in her own language and to grant her time to translate the documents.

26.  However, as can be seen from the Board’s Decision, the adjudicator did take time to consider the applicant’s case. The hearing before the Board was held on 23 February 2023, and the Board gave the Board’s Decision on 4 May 2023. Thus, the Board did take more than two months to consider the applicant’s case and did not dismiss it directly. The adjudicator also gave detailed reasoning in refusing the applicant’s appeal. The applicant’s allegations that the adjudicator failed to consider her claim and dismissed her claim directly had no substance at all.

27.  The applicant gave no particulars as to what documents the adjudicator had refused to accept or how those documents could assist her claim. Thus, the applicant could not establish any prejudice that she had suffered.

28.  The applicant further asserted that the translator did not help her at all and that the interpreter asked her not to take long time for the interview. Again, these assertions were put forward without specificity. The applicant did not specify which matters that she wanted to present to the Board but were prevented from doing so because of the translator’s alleged action or inaction and how they might affect her claim.

29.  The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.

30.  Thus, these general assertions without the requisite particulars cannot help the applicant at all.

31.  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).

32.  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.

33.  The applicant was afforded an oral hearing before the Board on 23 February 2023 and the applicant was present. Thus, the applicant did have the opportunity to present her case to the Board in person.

34.  The Board found that the applicant had failed to give a clear and consistent account of the events in Indonesia. The Board found significant inconsistencies in her account given to the Immigration Department and to the Board, such as the time she became aware that Nedi was not making repayments from the money she sent him from Hong Kong, when she divorced Nedi, when was the last time the creditor’s men came to her mother’s house about the debt, etc. The applicant could not adequately explain the reason for those differences and the accounts could not be reconciled.

35.  Moreover, the applicant had never been threatened or harmed directly by the creditor, as she had not been in Indonesia and only knew of the threat through others. She had no information about the identity of the creditor and was unable to provide any information about the creditor.

36.  The Board did not find the applicant to be a credible witness. The Board found the applicant’s husband might have borrowed money from a lender and might have difficulty in repaying the loan. The Board did not accept, however, that the applicant had been threatened by the lender or that she would face harm on return to Indonesia because of the loan. The Board’s view was strengthened by the applicant’s evidence at the hearing that she did not know whether the loan was still outstanding which indicated that she had no current or direct knowledge of any circumstances involving the loan.

37.  The Board thus concluded that the applicant had fabricated her evidence to advance a claim for non-refoulement protection and that she was not at risk of harm from a moneylender (who, according to the applicant’s information from her mother, had in fact deceased) should she return to Indonesia. Hence, the Board found her claim for non-refoulement protection failed on all the applicable grounds under the USM.

38.  The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s claims and the matters giving rise to her claims for non-refoulement protection were rejected in their entirety, it is therefore not necessary for the Board to consider the availability of state protection.

39.  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).

40.  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.

41.  The assessment of evidence and risk of harm was primarily within the realm of the Board. The Board was entitled to make its decision. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

42.  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.

43.  Thus, there is no merits in the Leave Application at all.

44.  Moreover, as the applicant had confirmed at the oral hearing before this court that it would be safe for her to return to her home country as she could relocate to her uncle’s place in another part of Indonesia, it is clear that she no longer needs non-refoulement protection and the Leave Application serves no practical purpose.

45.  It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (see AW v Director of Immigration and William Lam, CACV 63 of 2015).

46.  Thus, even assuming that there were errors of law, procedural unfairness, or irrationality in the Board’s Decision and the case were remitted to the Board for reconsideration, there would simply be no more basis for the applicant to claim non-refoulement protection as it was no longer unsafe for her to return to her own country and relocate to her uncle’s place in another part of Indonesia. The Board should assess the risk of the applicant at the time of the proceedings, taking account of information that has come to light to ensure that it is able to make a “full and up-to-date assessment” of the current situation (see Ubamaka Edward Wilson v Secretary for Security and Another (2012) 15 HKCFAR 743).

47.  It is therefore otiose and pointless to grant leave to the applicant to proceed with the intended judicial review, and hence the Leave Application ought to be dismissed.

Conclusion

48.  For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed for being made out of time and devoid of merits.

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

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