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

HCAL 820/2022

[2026] HKCFI 2546

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 820 of 2022

Application for Leave to Apply for Judicial Review

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

Following;

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

Observations for the Applicant:

Introduction

1.  By Form 86 dated 24 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 12 August 2022 (“Board’s Decision”), which affirmed the Decision of the Director of Immigration (“Director”) dated 21 January 2022. 

2.  An oral hearing, which was requested by the Applicant, took place before me on 25 February 2026.  The Applicant attended in person. 

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

Background

4.  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. 

5.  In short, the Applicant claimed to be in fear of a creditor (from whom she and her ex-husband had jointly borrowed a loan which they were unable to repay), and of her ex-husband, if she was returned to Indonesia.  According to the Applicant, she was informed that the creditor had turned up with bodyguards and threatened to kill the Applicant if the loan and interest were not repaid.  The creditor had also threatened to kill the Applicant over the phone.  On the other hand, the Applicant claimed that her ex-husband had shifted the blame of repaying the loan to her, and threatened to beat her up if she returned to Indonesia.  She said she did not know the whereabouts of her husband after she cut contact with him. 

Discussion

6.  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. 

7.  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. 

8.  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. 

9.  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. 

10.  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 found that it was unlikely for the creditor to have a real intention to seriously harm the Applicant and it was more likely for the creditor to want the Applicant to resume making repayment. While the Board accepted that the creditor had likely used intimidating conduct, it noted that no family members of the Applicant had been harmed: §§54-60. 

(2)   As to the ex-husband, while the Board accepted that the Applicant might have been slapped by him in the past, there was no evidence to suggest that she was seriously harmed at any time: §63. 

(3)   In any event, the Board noted that the Applicant did not report either the creditor or the ex-husband’s threats to the police: §72.  The Board considered the relevant COI which reasonably indicated that the Applicant would be able to avail herself of state protection if she required it: §§69-74. 

(4)   Further still, the Board considered that the Applicant could safely and reasonably relocate within Indonesia to, for example, Jakarta or Bali, if necessary, considering that the influence of the creditor and her ex-husband should be localised and given her own work experience §78. 

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

Conclusion

12.  I make an order 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

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