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HCAL 1272/2021
[2026] HKCFI 2103
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1272 OF 2021
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BETWEEN
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Evi Farida |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 25 May 2021”.
2. 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 10 September 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:-
“27-OCT-2020 My claim was Refused by DiRector of ImmigRation”.
2. The Director of Immigration (“the Director”) rejected the applicant’s claim for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”) on 27 October 2020 (“the Director’s Decision”). The Torture Claims Appeal Board (“the Board”) made a decision dated 25 May 2021 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the Director’s Decision.
3. At the oral hearing before this court on 19 March 2026, this court explained to the applicant that the Director’s Decision was superseded by the Board’s Decision and was no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). The applicant then confirmed that the Leave Application was only in respect of the Board’s Decision, which can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001272_2021_files/the_Board's_Decision.pdf
4. The Board found that the applicant had not substantiated a case for non-refoulement protection on any of the applicable grounds under the USM. Hence, the Board dismissed the applicant’s appeal/petition against the Director’s Decision and confirmed the same.
Amendments
5. The applicant named both the Board and the Director as the putative respondents and the Board as the putative interested party in Form 86, and spelt the Board’s name wrong.
6. As only the Board’s Decision is the subject matter of the Leave Application, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party.
7. As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision.
8. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration”, and the decision in respect of which relief is sought in the Leave Application to “Torture Claims Appeal Board’s decision dated 25 May 2021”.
Late application
9. 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.
10. However, the applicant filed Form 86 on 10 September 2021, which was 3 months and 16 days after the Board’s Decision (made on 25 May 2021). The applicant was hence late for 16 days in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.
11. As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time 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.
12. The applicant did not make any application for extension of time and provided no explanation for the delay when she filed the Leave Application. At the oral hearing before this court, the applicant first explained the delay by saying that she did not get the Board’s letter. However, she confirmed later at the hearing that she was asked to collect some papers some time after the Board’s hearing, and the Board’s Decision was among the papers she collected. She then said that no one, including her lawyer, told her to apply for judicial review at that time, and hence she was late in filing the Leave Application.
13. Although the delay of 16 days is not very substantial, the explanations given by the applicant are clearly not satisfactory. On the one hand, she said that she did not receive the Board’s letter, but she confirmed later that she was asked to collect some papers some time after the Board’s hearing, and the Board’s Decision was then given to her. It is clear that she must have received the Board’s Decision. There is no reason for the applicant to wait to be told to apply for leave to apply for judicial review if she indeed intended to make such an application after receiving the Board’s Decision, especially when she had a lawyer at that time.
14. More importantly, there is no merits of the intended judicial review at all as discussed below. Thus, this court is not prepared to extend the time for the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can be dismissed on the ground of being made out of time alone.
15. However, for the sake of completeness, this court will still examine the merits of the Leave Application.
The applicant’s case
16. 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.
17. In sum, the applicant claimed for non-refoulement protection because she feared that if refouled to Indonesia, she would be harmed or killed by her husband Mujidah, and a local loan shark, Akong, to whom she and her husband owed 350 million Indonesian Rupiah.
Oral hearing
18. The applicant requested for an oral hearing of the Leave Application and her case was heard on 19 March 2026.
19. When this court asked the applicant for the grounds of the intended judicial review, she merely said that she did not want to go back to Indonesia.
Grounds for judicial review
20. 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).
21. The applicant did not identify any ground for the intended judicial review in Form 86, nor in her supporting affirmation dated 10 September 2021.
22. What the applicant said at the oral hearing before this court did not constitute any valid ground for her intended judicial review either.
23. Nevertheless, after the oral hearing before this court, the applicant filed an affirmation dated 20 March 2026 and attached to it a written submission containing grounds for her intended judicial review.
24. The contents of the said submission were all very general and were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations. Nevertheless, as the applicant is relying on those grounds stated in the said submission, this court will still deal with the grounds as discussed below.
Discussion
25. As mentioned, all the grounds contained in the applicant’s written submission are very general. Some of the grounds therein were directed at the Director. As the Director’s Decision was superseded by the Board’s Decision, it is no longer susceptible to judicial review (see Re Moshsin Ali, supra). The applicant also confirmed that only the Board’s Decision is the subject matter of the Leave Application. This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.
26. There are a total of 12 paragraphs in the said submission. Paragraphs 5, 6 and 8 of the applicant’s grounds were directed at the Director. Hence, they could not be used to challenge the Board’s Decision and can be simply ignored. Thus, only the remaining paragraphs of the written submission are relevant to the Leave Application.
27. In paragraph 1 of the grounds, the applicant only identified herself as the aggrieved party. In paragraph 10, the applicant merely stated that the Board’s Decision contained all the details of her claim. These are not grounds for judicial review at all.
28. The applicant alleged in paragraph 2 that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test. However, the applicant did not state how or why the Board’s Decision was wrong, unfair and unreasonable. It does not help the applicant to establish any ground by just mentioning the right to life in paragraphs 3 and 4 either.
29. In any event, the Board did assess the applicant’s risk of right to life but concluded that there was no evidence that there was any personal and real risk of the applicant being subjected to a BOR 2 Risk[1] on her return to Indonesia.
30. In paragraph 7 of the grounds, the applicant alleged that the adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on country of origin information (“COI”) but failed to take her personal background and experience into account. However, the applicant did not state which aspects of her personal background and experience had not been taken into account by the Board.
31. The applicant further alleged in paragraph 7 of the grounds that although the Director had listed the relevant COI which supported the aversions that the police in her country would not be able to protect, the Director failed to consider or give enough weightage to those evidence and ruled otherwise. This is just a vague and general accusation without any specificity.
32. In fact, the Board had gone through very extensive, fully-referenced COI to examine not just the availability of state protection to the applicant, but also the availability of government and non-governmental assistance that were available to women who faced domestic violence or other forms of violence. The Board also explored the possibility of divorce without the consent of the applicant’s husband.
33. In paragraph 9 of the grounds, the applicant simply alleged that the adjudicator ought to allow the appeal/petition and the Board’s Decision was irrational. There was no particulars or reasons given to say how or why the Board’s Decision was irrational.
34. The Board had in fact provided a very detailed analysis of the applicant’s claim and the reasons why the Board concluded that the applicant failed on all the applicable grounds under the USM to claim non-refoulement protection.
35. The applicant complained in paragraph 11 that the Board’s Decision was unreasonable and irrational in the public law sense or was a result of procedural errors or unfairness. Again, no particulars were given to as to how or why the Board’s Decision was what she alleged.
36. Finally, the applicant asserted in paragraph 12 that the Board had relied on some web news which were not officially recognized by the authorities and there was no proper investigation of her claim. However, the applicant failed to identify which pieces of web news that the Board had relied on were not officially recognized and how the Board failed to investigate her claim.
37. 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”.
38. Thus, none of the grounds that were contained in the applicant’s said written submission could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.
39. The applicant’s alleged danger in her home country had been fully assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.
40. 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).
41. Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.
42. In assessing the appeal by the applicant, the Board arranged an oral hearing on 16 March 2021 and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person.
43. The Board found that the applicant’s fear of her husband arose from his previous domestic violence on her, and that he threatened to kill her if she did not send him money. The applicant’s fear of the creditor arose from the creditor’s threat that he would kill her if she did not repay the loan.
44. After due consideration of the law and all the evidence, the Board found that the acts or conduct of both the applicant’s husband and her creditor had not attained the degree of severity to fall within the definition of torture as defined in section 37U of the Immigration Ordinance or the minimum level of severity to entitle her to international protection. Moreover, the acts or conduct of both the applicant’s husband and her creditor were to pressurize the applicant into repayment of the loan. Her husband’s conduct, in addition, was that of an abusive husband. The pain and suffering inflicted upon the applicant was not for any of the listed purpose of torture or for a Convention reason. No public officials were involved in the ill-treatment of the applicant. There was no evidence that the state of Indonesia had acquiesced in the treatment of the applicant both from her husband and her creditor, or failed to provide reasonable protection.
45. Moreover, given the discrepancies in the applicant’s oral evidence and documentary evidence, the Board did not find the applicant’s evidence to be credible, and hence attached very little weight to it. The Board found it doubtful that the loan existed in reality. Even had it been true, it would not fall within any of the appliable grounds under the USM as it was just a private monetary dispute. Domestic violence was not an applicable ground either.
46. With regards to the availability of state protection to the applicant, the Board found that the applicant had in fact never sought assistance from the police or authorities regarding her problem with her husband and her creditor. The Board found from extensive, fully-referenced COI that while the situation was not ideal in Indonesia, the government was taking steps to deal with corruption and to improve conditions in the country. There were also government services and NGOs providing services for the needs of women under threats of domestic violence and other forms of violence.
47. The Board also found that there should be viable options for the applicant to settle at an alternative place in Indonesia. There was no evidence to show that her husband and the creditor were powerful, influential and resourceful enough to locate the applicant had she moved to stay and live in cities other than her own. The applicant had 9 years of education and 10 years of work experience including doing odd jobs and working as a foreign domestic helper. The Board considered that it would not be unduly harsh for the applicant to relocate to major urban areas in Indonesia where there would be ample opportunities for employment.
48. Thus, the Board concluded that the applicant had not substantiated a case for non-refoulement on any of the applicable grounds under the USM.
49. The finding of facts, including assessment of evidence, COI and risk of harm, was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
50. 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.
51. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
52. For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.
Dated the 15th day of April 2026
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( Teresa NG )
for Registrar, High Court
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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
Notes for the applicant:
If leave has been granted, the applicant or the applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors on: 15 April 2026
Applicant’s ref. no:
Nil |
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 15 April 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 17362/20/11/30/I1894
Director of Immigration
Putative interested party’s ref. no.: QA T/C 405/20 (formerly RBCZ 10326/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
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