LESTARI ERVIN INDAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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 only 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 a Form 86 filed on 19 December 2022 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 2 December 2022 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 24 November 2021 (the “DOI Decision”).

2.   I amend the Form 86 on my own motion, naming only the DOI as the putative interested party.

3.  The Applicant requested for a hearing of this application but was absent. Her friend however requested to speak on the Applicant’s behalf. I allowed the request. Her friend informed the court that the Applicant was hospitalised, and provided the court with relevant documentary support.

Background

4.  The Applicant is a national of Indonesia. In gist, she fears that she will be ill-treated or even killed by her husband due to private dispute if she returns to Indonesia. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them. Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

Discussion

5.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

6.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  A finding of fact is exclusively within the realm of the TCAB, and 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 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.  The Applicant did not state any grounds on which the relief is sought in the Form 86 other than stating in the supporting Affirmation that “I don’t want go back Indonesia because my life very Danger. Because of my loan shark, they will kill me if I’m in Indonesia Because I can’t pay the Debt. I don’t have money to pay the Debt. Please save my life…” Hence, it did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

9.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [31-68]. It is pertinent to note that the TCAB, while noting that there was nothing produced to support her case, nonetheless took no issue on her credibility [31]. Still, the TCAB considered that the threats were nothing but empty threats or an instinctive reaction to express her husband’s disappointment that the Applicant was unable to remit money home [41]. This conclusion cannot be faulted - in reality, her husband had never been violent towards the Applicant or her family members, and there was no evidence to show that her husband had real intention to severely harm or kill the Applicant [23, 43]. In any event, the TCAB considered that state protection [49-54] and internal relocation [55-57] would be available to her if she returned.

10.  The purported ground on which the relief is sought is odd, as her case was not that the loan shark would kill her at all. In any event, this is a belated bare assertion.

11.  I have also considered the Applicant’s friend’s oral submissions and the medical certificate in support of her hospitalisation dated 3 March 2026. The medical certificate does not state the reason for her hospitalisation nor has it been subsequently explained to the court. In any event, her medical condition does not form part of her case.

12.  If and insofar as the Applicant seeks to claim that there has in fact been a significant change of circumstances or new information relevant to her non-refoulement claim, that may be relevant to the potential procedure in ss. 37ZO and 37ZP Immigration Ordinance (Cap 115), but it is not relevant to the present application (Amandeep Kumar v Torture Claims Appeal Board [2019] HKCA 1369 at §13; Poinem v Torture Claims Appeal Board [2020] HKCA 911 at §15).

13.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is 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