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HCAL 1144/2021
[2026] HKCFI 1759
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1144 OF 2021
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BETWEEN
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Candra Aprillia |
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 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 13 August 2021, 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 25 June 2021 (“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/2021/HCAL001144_2021_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 refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 14 October 2020, which rejected the applicant’s non-refoulement claim, and confirmed the same.
Amendment
3. The applicant named the Board as the putative interested party in Form 86, when the Director should be so named.
4. Thus, this court makes an order on its own motion to amend the name of the putative interested party to “Director of Immigration”.
The applicant’s case
5. 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.
6. In sum, the applicant claimed for non-refoulement protection because she feared that if refouled to Indonesia, she would be killed by her husband who suspected that she had been in relationships with other men.
Oral hearing
7. The applicant requested for an oral hearing of the Leave Application and her case was heard on 3 March 2026.
8. When this court asked the applicant for the grounds of her intended judicial review, the applicant merely replied that her problem was about the way her ex-husband treated her. She confirmed that her problem had been presented to the Board, but she could not tell what was wrong with the Board’s Decision because she did not know.
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 identify any grounds for the intended judicial review in Form 86, nor in her supporting affirmation dated 13 August 2021. The applicant only stated in her affirmation that she was not satisfied with the Board’s Decision and she could not go back to her country at the moment because her life was not safe there. She requested for help for her to stay in Hong Kong until her problem was solved.
11. As aforesaid, the applicant only repeated the basis of her non-refoulement claim, which was her problem with her husband/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.
Discussion
12. First of all, the applicant’s problem with her husband 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. 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).
14. 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.
15. In assessing the appeal by the applicant, the Board arranged an oral hearing on 27 May 2021 and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person.
16. As can be seen from the Board’s Decision, the Board found the entire centerpiece of the applicant’s account that her husband would kill her if she returned to Indonesia hard to believe. The applicant’s evidence was shifting, inherently inconsistent, defied logic and/or vague. The Board did not accept that the applicant had proven to have married or to have children in her life. As to the applicant’s account of her encounter with a close male friend and the subsequent threats from her husband arising from his suspicion of her having an affair, the Board was not convinced that the event had actually taken place. The Board also did not accept that the applicant’s husband had come to look for her and hurt her in her cousin’s home in February 2017.
17. In gist, all the applicant’s claims that gave rise to her non-refoulement claim were rejected.
18. Further, the Board found from objective country of origin information (“COI”) that the Indonesian government had in place an adequate system to protect citizens from harm, and there were many government and quasi-government organizations across the country that had been established to assist women having experienced domestic abuses.
19. The Board also found that in any event, any chance of harm from the applicant’s husband could be further reduced, if not negated, by appropriate relocation. The Board did not find it unduly harsh for the applicant, being an able 31 year-old woman (at the time of the Board’s Decision) with good experience of working as a domestic helper, to relocate to Jakarta in Indonesia.
20. Thus, the Board concluded that the applicant had not substantiated a case for non-refoulement protection on any of the applicable grounds under the USM.
21. The finding of facts, including 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.
22. 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.
23. 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
24. For reasons aforesaid, the Leave Application is dismissed.
Dated the 25th day of March 2026
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( Teresa NG )
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 the applicant’s 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: 25 March 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: 25 March 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 17324/20/10/73/I1885
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 279/20 (formerly RBCZ 10259/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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