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HCAL 1165/2023
[2026] HKCFI 3534
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1165 OF 2023
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BETWEEN
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Sari Ita Purnama |
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”.
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 12 July 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 30 June 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001165_2023_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 21 December 2021, which rejected her non-refoulement claim.
Amendment
3. In Form 86, the applicant named the Board / “NON REFOUEMENT CLAIMS PETITION OFFICE” as the putative respondent, when only the Board should be so named.
4. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a respondent at all.
5. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.
The applicant’s case
6. 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.
7. In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she feared that she would be harmed or killed by her creditors due to her inability to repay her outstanding loans and their related interests.
Disposal on paper
8. The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.
Grounds for judicial review
9. 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).
10. The applicant did not advance any ground for her intended judicial review in her Form 86.
11. In her supporting affirmation dated 12 July 2023, under the heading “GROUNDS”, the applicant mentioned a few matters against the Board’s Decision, which are summarised as follows:-
(1) There was procedural impropriety as the Board failed to consider the fact that she had raised in her non-refoulement claim, namely that the authority of her country would not be able to protect her;
(2) The Director and the Board did not consider the fact that she raised in her claim, namely that she would face problem in her country;
(3) The Board did not consider the fact that the country of origin information and other facts for which she was expelled from her country and would face real risk from her enemies; and
(4) The Board failed to consider the fear and consider her claim under BOR 2 and BOR 3 risks.
Discussion
12. First of all, the applicant’s problems and the risks arising from the problems in her home country had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
13. It is utterly untrue that the Board had not considered the applicant’s alleged problems and her BOR 2 Risk[1] and BOR 3 Risk[2]. As can be seen from the Board’s Decision, the Board actually considered the applicant’s claims for non-refoulement protection on all the applicable grounds under the USM. The fact that the Board found the applicant failed to establish a case for non-refoulement protection does not mean that her risks in her home country were not considered. Grounds (2), (3) and (4) as summarised above are not arguable.
14. Regarding Ground (1), the applicant seems to challenge the Board’s finding on the availability of state protection to her upon return to her country.
15. The Board had laid out its findings in paragraphs 62 to 69 of the Board’s Decision concerning the availability of state protection and addressed the applicant’s concerns on the subject. The Board’s findings were supported by fully-referenced country of origin information (“COI”). This court finds no flaw or irrationality in the Board’s findings.
16. Thus, all the matters that were contained under the title “GROUNDS” in the applicant’s affirmation cannot help her at all.
17. 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).
18. 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.
19. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 12 August 2022. The applicant was present and was thus given the opportunity to present her case to the Board in person.
20. The Board laid out its assessment of the applicant’s claim on each of the applicable grounds under the USM in paragraphs 70 to 86 of the Board’s Decision, and it is not necessary to repeat the same here.
21. In gist, the Board found that the applicant’s fear against her creditors arose only from the fact that she could not repay the outstanding loans and related interests to them. The disputes between the applicant and the creditors were private monetary disputes. There was no suggestion of any state acquiescence in the applicant’s case, and the applicant’s fear of the creditors was not for a Convention reason. She had never suffered any physical injury by any of her creditors. Although she had been verbally threatened, she was able to avoid the harm by relocation. The Board considered that any sufferings the applicant had experienced did not attain the minimum level of severity required for international protection.
22. As aforesaid, the Board had addressed the applicant’s concerns about the availability of state protection to her and found that the applicant’s claim that the authority in Indonesia would not protect her was unsupported by COI. In fact, the applicant had never sought assistance from the police or other authorities before she departed the country. The Board was of the view that the applicant could seek help from the authorities should she need it.
23. In addition, as can be seen in paragraphs 87 to 93 of the Board’s Decision, the Board considered that it would be viable for the applicant to relocate to other areas in Indonesia to lower or negate the risk from the creditors.
24. Thus, the Board concluded that the applicant failed to establish a case for non-refoulement protection in Hong Kong.
25. The finding of facts including the assessment of evidence, COI and risk of harm was primarily within the realm of the Board in dealing with her appeal/petition. The applicant’s alleged danger in her home country had been duly assessed by the Board. The Board was entitled to reach its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
26. 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.
27. 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 intended judicial review has no realistic prospects of success at all, and hence the Leave Application must be dismissed.
Conclusion
28. For reasons aforesaid, the Leave Application is dismissed.
Dated the 17th day of June 2026
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( Gladys LEE )
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 his 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: 17/06/2026
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: 17/06/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 19608
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1922/21 (Formerly RBCZ 397/21)
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.
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
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