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

HCAL 3851/2019

[2025] HKCFI 1619

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3851 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 24 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review of “the decision made by the Immigration Department” dated 21 August 2019. She named the “Immigration Department” as both the proposed respondent and also an interested party.

2.  From the papers filed in this application, there is a decision by the Torture Claims Appeal Board (the “TCAB”) dated 14 November 2019 (the “TCAB Decision”) which confirmed the decision by the Director of Immigration (the “DOI”) dated 4 January 2019 in refusing the Applicant’s non-refoulement protection claim. I take it that the Applicant is seeking judicial review of the TCAB Decision.

3.  I therefore amended the Form 86 accordingly with the TCAB named as the putative respondent and the DOI as a putative interested party.

4.  The Applicant requested for a hearing of this application and attended the same. When asked if she had anything to add she confirmed that she had not.

Background

5.  The Applicant is a national of Indonesia. She seeks non-refoulement protection on the basis that her family had threaten to kill her if she is returned as she has a child out of wedlock with a non-Muslim man. Her personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

6.  In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision‑makers. This 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 TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676).

7.  In her affirmation filed in support of the Form 86, the Applicant only reiterated that her life will be in danger if she is returned and did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

8.  Looking at the TCAB Decision, all the available evidence was before the TCAB [8-25] and after careful consideration of the same with the correct approach in mind [16‑18 Attachment to the TCAB Decision], the TCAB came to the conclusion that the Applicant’s allegations were not made out [26-36].

9.  The TCAB then proceeded to anaylse each of the four applicable grounds under the USM, applying the correct legal principles in each instance [1-15 Attachment to the TCAB Decision], and came to the conclusion that none was made out [37-44].

10.  All in all, I have not detected any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

11.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore 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