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

HCAL 697/2022

[2026] HKCFI 1915

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 697 of 2022

Application for Leave to Apply for Judicial Review

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

Following;

1.   Form 86 be amended, naming 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 Form 86 dated 1 August 2022 (“Form 86”), the Applicant seeks leave to apply for judicial review (“Leave Application”) against the Decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“Board”) dated 28 June 2022 (“Board’s Decision”), which affirmed the Decision of the Director of Immigration (“Director”) dated 22 July 2021.

2.  The Form 86 incorrectly named the Board as putative interested party. I therefore amend the Form 86 on my own motion to name the Director as the putative interested party instead.

3.  An oral hearing, which was requested by the Applicant, took place before me on 24 February 2026. The Applicant attended in person.

4.  At the hearing, the Applicant indicated that she had nothing to add to the papers submitted for her Leave Application.

Background

5.  The Applicant is from Indonesia. Her background and the basis of her application for non-refoulement were set out in detail in the Board’s Decision at this hyperlink.[1] I will not repeat them here. Unless otherwise specified, I adopt the abbreviations in the Board’s Decision.

6.  In short, the Applicant claimed to be in fear of being harmed or killed by her father’s creditors, who had security over the Applicant’s house, if she were returned to Indonesia. According to the Applicant, she was informed that the creditors had threatened her family, vandalised the house, and threatened to kill her unless she paid off the loan.

Discussion

7.  Leave application is meant to be a filtering process and the court is not expected to give elaborate reasons for its decision: Re Zunariyah [2018] HKCA 14 at §23. I therefore set out below brief reasons for my decision, which I have reached upon considering all the materials before me.

8.  The court’s role in judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board.  While the court adopts in non-refoulement cases an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board: Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(1). There must be a reasonably arguable case, namely one which enjoys a realistic prospect of success, before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at §§14-17.

9.  In a proper Form 86, an applicant is required to state the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) at §142. He or she is also under a duty to make full and frank disclosure of material facts: Kan Hung Cheung v The Director of Immigration [2008] HKC 323 at §§14-17.

10.  In this Leave Application, the Applicant has not stated any ground of judicial review. She has not identified any error of law or procedural unfairness or irrationality in the Board’s Decision to demonstrate a reasonably arguable case.

11.  In any event, I have reviewed the Board’s Decision and I do not detect any error of law, procedural unfairness or irrationality. The Board assessed the evidence in detail and gave adequate reasons for its decision. In particular:

(1)   The Board observed that the creditors did not threaten or harm the Applicant to the requisite level of severity and the threats fell short of showing a genuine and substantial risk of harm: §54.

(2)   In any event, the Board noted that the Applicant and her family did not report the threats by the creditors, who were non-state actors, to the police or other government authorities: §§54-55. The Board considered there was no evidence that the state would be unwilling or unable to afford protection to the Applicant if sought: §§59-61.

12.  In the premises, I conclude that the Applicant’s intended challenge against the Board’s Decision is not reasonably arguable. 

Conclusion

13.  I make an order that the Form 86 be amended in the manner set out above and that the Leave Application be dismissed.

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