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HCAL 3365/2019
[2025] HKCFI 3980
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3365 OF 2019
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BETWEEN
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Deni Ayu Setiawati Bt Miskarya |
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”, the name of the putative interested party be amended to “Director of Immigration”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 5 November 2019”.
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 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a “Decision of the Director of Immigration. Decision date: 5-Nov-2019”.
2. The Director of Immigration (“the Director”) did not make any decision regarding the applicant’s non-refoulement claim on 5 November 2019, but the Torture Claims Appeal Board (“the Board”) did. The Board’s decision dated 5 November 2019 (“the Board’s Decision”) was made in respect of the applicant’s appeal/petition against the decision of the Director dated 11 January 2019 (“the Director’s Decision”).
3. The applicant confirmed at the oral hearing before this court on 17 June 2025 that the Leave Application was filed in respect of 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/2019/HCAL003365_2019_files/the_Board's_Decision.pdf
4. The Board found that the applicant was unable to make out her claims on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition and confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.
5. On 10 June 2025, the applicant filed an affirmation dated 9 June 2025 to make an ex-parte application to add her daughter in the Leave Application. This court refused the ex-parte application on 13 June 2025, as the applicant’s daughter should file a separate application for leave to apply for judicial review in respect of the Board’s decision dated 20 December 2023, which dealt with the non-refoulement claim of the applicant’s daughter separately.
6. Thus, the Leave Application is still in respect of the applicant’s own case alone.
Amendments
7. The applicant named “Director of Immigration” and “TCAB / Non Refoulement claims petition office” as both the putative respondents and the putative interested parties in Form 86, when the putative respondent should only be the Board and the putative interested party should only be the Director.
8. The Non-refoulement Claims Petition Office should not be named as a party at all, as it is just an office providing administrative and secretariat support to the adjudicators of the Board.
9. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.
10. As aforesaid, the decision in respect of which relief is sought in the Leave Application should be “Torture Claims Appeal Board’s decision dated 5 November 2019”. Thus, on this court’s own motion, the decision in respect of which relief is sought is so amended.
The applicant’s case
11. 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.
12. In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she believed that her life would be in danger as she could not repay a loan owed to a loan shark named Junaidi.
Oral hearing
13. The applicant requested for an oral hearing and her case was heard on 17 June 2025.
14. At the hearing, apart from confirming that the Board’s Decision was the subject of the Leave Application, the applicant repeated her request to ask this court to allow her daughter to join in the Leave Application. This court informed the applicant that her application for joining her daughter was rejected by this court and she was informed of the court’s order by way of this court’s letter to her dated 13 June 2025. The applicant told this court that she did not receive the letter. Nevertheless, as this court had already refused to join the applicant’s daughter in the Leave Application, this court will only deal with the applicant’s own case alone.
15. When this court asked the applicant to provide the grounds for the Leave Application, she merely said that her life would be threatened if she were to return to Indonesia.
Grounds for judicial review
16. 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).
17. The applicant stated in her Form 86 and supporting affirmation dated 12 November 2019 that the decision to refuse her torture/USM claim was unreasonable as her claim and all the matters raised in her claim were not carefully considered, and/or no adequate reason was given for the decision.
Discussion
18. 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).
19. In assessing the appeal by the applicant, the Board held an oral hearing on 29 May 2019. The applicant was present and was given the chance to present her case to the Board in person.
20. After detailed questioning of the applicant, the Board accepted that the applicant had a debt problem in Indonesia and she might face problems from Junaidi were she to return to her home country.
21. However, the Board was satisfied that the applicant could relocate safely to elsewhere in Indonesia with little or no fear of being traced by Junaidi. The applicant’s home area was rural and appeared fairly remote, and Junaidi was not particularly influential or powerful. He was described by the applicant as just a moneylender, no more no less. The Board considered that a moneylender would lose all prospect of a debt being repaid if a debtor was killed or seriously harmed, so it was likely that the worst the applicant would suffer would be threats and intimidation.
22. The Board also found that freedom of movement was allowed in Indonesia. The applicant, as an able-bodied woman with considerable work experience as a domestic helper in different countries, could safely relocate to many places in Indonesia.
23. Although the applicant believed that she would need to bribe the police to seek protection, the Board agreed with the finding of the Director that although there were deficiencies and unsatisfactory situations in Indonesia, it was not accepted that reasonable state protection would not be available to the applicant should she need it.
24. Thus, the Board concluded that the applicant failed to establish any real risk of harm, ill-treatment, arbitrary deprivation of life or persecution and rejected her claim for non-refoulement protection.
25. The applicant’s assertions that the Board’s Decision was unreasonable and the Board failed to consider all the matters raised in her claim were unfounded. The Board did consider the applicant’s claims and accepted that she might face harm from Junaidi. The applicant’s claims were rejected simply because the Board found that state protection was available to her and internal relocation was viable for her. The Board gave very detailed reasoning in support of those findings, which cannot be regarded as inadequate as alleged by the applicant.
26. The finding of facts was within the ambit of the Board. The Board was entitled to come to its conclusion. If the applicant intends to challenge the finding of facts of the Board, it is not permissible in an application for judicial review. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
27. 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.
28. 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
29. For reasons aforesaid, the Leave Application is dismissed.
Dated the 2nd day of September 2025
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( Irene 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: 2 September 2025
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:
2 September 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 15410/19/1/283/I1621
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 4861/18
(Formerly RBCZ 10848/18)
Department of Justice,
Senior Assistant Law Officers
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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