MUSLIMAH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1051/2023

[2026] HKCFI 3527

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1051 OF 2023

Application for leave to apply for judicial review

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

Following:

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

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

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 29 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 16 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/HCAL001051_2023_files/the_Board's_Decision.pdf

2.  The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on the grounds of Persecution Risk[1], BOR 2 Risk[2], BOR 3 Risk[3]under the Unified Screening Mechanism (“the USM”). Thus, the Board refused the applicant’s petition against the decision of the Director of Immigration (“the Director”) dated 4 June 2020 and confirmed the same, which rejected her non-refoulement claim on the said grounds.

3.  The applicant had previously made a torture claim and the claim was rejected by the Director on 18 July 2011. The applicant did not file an appeal against that decision. Thus, the applicant’s Torture Risk[4] had been finally disposed of, and it was not necessary for the Board to re-assess the same in the Board’s Decision.

Amendments

4.  In Form 86, the applicant named the Board and the Director as the first and second putative respondents respectively, and named herself as the putative interested party.

5.  As the subject of the Leave Application was only the Board’s Decision, only the Board should be the putative respondent, and the Director should be the putative interested party.

6.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

The applicant’s case

7.  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.

8.  In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she feared harm or death from her husband if she insisted on a divorce and also due to her refusal to send him money.

Disposal on paper

9.  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. Thus, the Leave Application is dealt with on paper.

Grounds for judicial review

10.  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).

11.  The applicant did not advance any ground for the intended judicial review in Form 86, nor in her supporting affirmation dated 29 June 2023.

Discussion

12.  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).

13.  Thus, despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

14.  In assessing the petition by the applicant, the Board held an oral hearing on 11 May 2023. The applicant was present and was given the chance to present her case to the Board in person.

15.  As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. The analysis and findings of the Board in relation to the applicant’s claim were laid out in paragraphs 47 to 65 of the Board’s Decision, and it is not necessary for this court to repeat the same here.

16.  In gist, the Board found that there were multiple, unexplained anomalies in the information the applicant had given over the course of her claims. Those anomalies went to the most fundamental of her claimed circumstances, including the history of her relationship with her husband, whether they were still married or divorced, whether her husband ever had another woman or children outside his marriage to the applicant, whether her husband had ever mistreated her or their daughter, and whether he had ever threatened the applicant.

17.  These anomalies were cumulatively significant in undermining the credibility of the claimed facts as well as the truth and reliability of the applicant’s evidence more generally. On the totality of the evidence, the Board did not accept that the applicant had ever been threatened by her husband and that she subjectively feared or objectively faced a real chance of harm from him for any of the reasons claimed.

18.  Thus, the Board concluded that the applicant’s petition and her claim for non-refoulement protection in Hong Kong failed on the grounds of Persecution Risk, BOR 2 Risk and BOR 3 Risk under the USM.

19.  The Board did not consider availability of state protection and viability of internal relocation. However, as the Board found the applicant did not face a real risk of torture, ill-treatment, arbitrary deprivation of life or persecution at the hands of her husband, it is not necessary for the Board to consider the availability of state protection.

20.  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).

21.  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 further consider internal relocation.

22.  The finding of facts, including the assessment of evidence and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

23.  For the sake of completeness, this court noticed that the adjudicator, Mrs Suhad Dutra, signed the Board’s Decision as “Adjudicator of the Non-refoulement Claims Petition Office” instead of “Member of the Torture Claims Appeal Board”. This is not a correct description of her capacity, as she was not making the determination on behalf of the Non-refoulement Claims Petition Office. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the members of the Board and does not have the capacity to determine non-refoulement claims itself.

24.  Under the USM, the Chief Executive has delegated his powers under Article 48(13) of the Basic Law to members of the Board to hear and determine petitions in relation to claims made on all applicable grounds other than Torture Risk (see paragraph 3.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme). Thus, only the members of the Board have the powers to hear and determine the applicant’s petition.

25.  Nevertheless, the wrong description of her capacity does not nullify the Board’s Decision, as Mrs Dutra was indeed a member of the Board and did have the power to determine the applicant’s petition.

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 error 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