SULISTIOWATI v. TORTURE CLAIMS APPEAL BOARD

HCAL 984/2023

[2026] HKCFI 1944

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 984 OF 2023

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

1.      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 21 June 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 15 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/HCAL000984_2023_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s application for non-refoulement protection was not made out on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 5 May 2022, which rejected the applicant’s non-refoulement claim, and confirmed the same.

The applicant’s case

3.  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.

4.  In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed or killed by her ex-husband as she had divorced him and he wanted her to transfer her share of their jointly owned house to him or give him money for his share.

Oral hearing

5.  The applicant requested for an oral hearing of the Leave Application and her case was heard on 17 March 2026.

6.  In her supporting affirmation dated 21 June 2023, under the heading “GROUNDS FOR JUDICIAL REVIEW”, the applicant stated some grounds for her intended judicial review.  When this court asked the applicant to elaborate on the grounds, she confirmed that she would rely on the grounds stated therein and repeated her danger from her ex-husband as she had divorced him and he had physically abused her in the past.  The applicant also confirmed that her issues with her ex-husband had been presented to the Board for assessment.  She just knew that the Board refused her appeal and she wanted to have a chance to live in Hong Kong.

Grounds for judicial review

7.  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).

8.  The applicant did not advance any grounds for the intended judicial review in her Form 86.  In her supporting affirmation, under the heading “GROUNDS FOR JUDICIAL REVIEW”, the applicant listed 6 grounds which are summarised as follows:-

(1)   The adjudicator did not consider her claim and did not even take time to think about her life;

(2)   The applicant submitted some documents but all in her mother language.  The adjudicator did not accept them because he could not understand the contents of them;

(3)   The applicant requested the adjudicator to give her time to translate the documents to English but the officer had no time;

(4)   The translator did not help the applicant at all and became angry if the applicant did not understand;

(5)   The interpreter asked her not to take long time for interview as he had another job; and

(6)   The applicant asked this court to help her and save her life.

Discussion

9.  In Ground (1) as mentioned above, the applicant asserted that the Board did not consider her claim and her life, but such assertions were advanced without any particulars.  As can be seen from paragraphs 39 to 43 of the Board’s Decision, the Board in fact accepted the applicant’s case that (1) she and her ex-husband jointly owned the house that they built while married; (2) the applicant filed for divorce in 2016 on the basis of her then husband’s violence towards her; (3) the house remained jointly owned by the applicant and her ex-husband; and (4) the applicant’s ex-husband might want his share of the house, if not the whole property.  The Board considered the applicant’s non-refoulement claim on the basis that the aforementioned facts were accepted. It is clear that the Board had considered her claim and her life.  Thus, there is no substance in this ground.

10.  As to Grounds (2) and (3), the applicant did not state what documents she had submitted to the Board but the adjudicator did not accept them because they were all in her mother language.  As aforesaid, the Board had accepted the basic facts of her non-refoulement claim. From the contents of the Board’s Decision, it seems that the applicant did not submit any documents in her mother language which were not accepted by the Board.

11.  In any event, as the applicant did not specify what documents she submitted or intended to submit that were not accepted by the Board, or how such documents would assist her non-refoulement claim, this allegation could not advance her case any further.

12.  In relation to Grounds (4) and (5), the applicant could have raised her complaints about the interpreter/translator to the Board, if those matters had actually happened.  In any event, the applicant failed to specify what she could have raised with the proper assistance of an interpreter, which could help her to advance her case further.

13.  Ground (6) is just asking this court to help her and save her life.  This is not a ground at all.

14.  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”.

15.  Thus, the applicant cannot rely on any general assertions without particulars as grounds for her intended judicial review.  This court finds that none of the grounds as stated in the applicant’s affirmation constituted a valid ground to challenge the Board’s Decision.

16.  As aforesaid, the applicant only repeated the basis of her non-refoulement claim, which was her problem with her ex-husband at the oral hearing before this court.  She confirmed that the problem had already been presented to the Board.  As such, it cannot be a valid ground for judicial review.

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 appeal by the applicant, the Board arranged an oral hearing on 15 May 2023 and the applicant was present.  Thus, the applicant was given the opportunity to present her case to the Board in person.

20.  As can be seen from paragraph 43 of the Board’s Decision, although the Board accepted the basic facts of the applicant’s claim, the Board found the allegation that the applicant’s ex-husband would follow through on any threat to kill her if she did not transfer the property to him not plausible.  The Board found that while the applicant was concerned about threats from her husband, which were actually made only via text messages and were last made in 2010, the primary concern was that she would not be able to live in her house if she returned to Indonesia.  Although that was a reasonable concern, it was not something that warranted international protection.  The Board had considered relevant country of origin information (“COI”) and found that in many ways, the solution to the applicant’s problems was in her hands.

21.  The Board was of the view that the harm suffered by the applicant in the past did not attain a minimum level of severity required for international protection.  The Board was not satisfied that the applicant was at risk of harm because of a family property dispute should she return to Indonesia.  Thus, the Board found that the applicant’s application for non-refoulement protection in Hong Kong was not made out on all the applicable grounds under the USM.

22.  The Board did not consider availability of state protection and viability of internal relocation.  However, as the Board had found that the applicant was not at risk of harm because of a family property dispute should she return to Indonesia, it is not necessary for the Board to consider the availability of state protection.

23.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997).  In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755).

24.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

25.  The finding of facts, including the 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.

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 applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

28.  For reasons aforesaid, the Leave Application 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