NANIK ARIASTINI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1740/2023

[2026] HKCFI 3506

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1740 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”.

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 28 September 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/HCAL001740_2023_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 26 August 2022 (“the Director’s Decision”) failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board affirmed the Director’s Decision, which rejected her non-refoulement claim.

Amendment

3.  In Form 86, the applicant named “THE TORTURE CLAIM APPEAL BOARD ( NON-REFOULMENT 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 putative 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 husband and her husband’s creditor. The applicant claimed that her husband had inflicted domestic violence on her in the past. Moreover, she was unable to repay a loan taken out by her husband, and was thus threatened by her husband’s creditor. Her husband divorced her islamicly but refused to sign the papers for a legal divorce, and demanded the applicant to clear off all his loans before he would do so.

8.  Moreover, at the hearing before the Board, the applicant raised two new issues, namely: (1) her eldest daughter told her that she had been raped by unknown persons in either 2021 or 2022; and (2) the applicant suffered from hyperthyroidism and received medication and regular check-ups in Hong Kong.

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. Hence, 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 her intended judicial review in her Form 86.

12.  In a document annexed to her supporting affirmation dated 28 September 2023, apart from stating the factual basis of her non-refoulement claim, the applicant advanced some grounds for her intended judicial review in paragraphs 18 to 22, which are summarised as follows:-

(1)  the Board failed to carry out risk assessment on real threat, where the applicant’s existing family members, including her sister and daughters, were still facing harassment and risk;

(2)  the Board failed to take into account relevant matter like the applicant’s mental health aroused by the event of harassment and threat by the debt collector as well as her husband;

(3)  the applicant’s legitimate expectation based on international protection on all the applicable grounds the USM; and

(4)  the applicant challenged the findings on state protection and internal relocation.

Discussion

13.  First of all, as can be seen from paragraphs 28 to 30 of the Board’s Decision, the Board actually assessed the applicant’s case on the presumption that she was a witness of truth and the facts presented by the applicant were true.

14.  The Board had given due consideration of the applicant’s new claims including that her daughter had been raped. However, the Board found that, even putting the applicant’s evidence at its highest, the applicant did not know who raped her daughter, and neither did her daughter. The applicant merely believed that it might have been the loan shark. After careful consideration of the background country information, the Board considered that the applicant would benefit from reasonable state protection, even if the applicant was correct in her fear that the loan shark had targeted her daughter.

15.  It is clear that the Board had made its own assessment of the applicant’s risks from both her husband and her husband’s creditor (see paragraphs 31 to 33 of the Board’s Decision), the availability of state protection to the applicant (see paragraphs 34 to 43 of the Board’s Decision), and the viability of her internal relocation (see paragraphs 44 to 48 of the Board’s Decision).

16.  The Board had given full justifications in the paragraphs abovementioned for its assessment of risks, and its agreement with the Director’s assessment of the availability of state protection and the viability of internal relocation.

17.  With regards to the applicant’s medical issues, the Board had duly noted the applicant’s medical conditions including the medicines required for the treatment. In its assessment of the viability of internal relocation for the applicant, the Board had given due consideration to the applicant’s health condition and the treatment required. The Board found that the types of medication required were available in Indonesia and access to them did not represent a serious barrier to reasonable relocation.

18.  Thus, Grounds (1), (2) and (4) as mentioned above are not arguable.

19.  As to Ground (3), where the applicant claimed that she had legitimate expectation based on international protection on all the applicable grounds under the USM including Persecution Risk[1], BOR 2 Risk[2], BOR 3 Risk[3] and Torture Risk[4], the Board had given its conclusion on each of the aforesaid grounds in the Board’s Decision. In gist, the Board found that the applicant faced no risk at all. Even if the applicant had the alleged risks, the Board also found that the applicant could rely on reasonable state protection and could relocate internally. It is clear that the Board had considered the applicant’s claim for international protection on all the applicable grounds under the USM.

20.  Thus, none of the matters that were raised in the applicant’s affirmation dated 28 September 2023 constitutes a valid ground for challenging the Board’s Decision.

21.  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).

22.  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.

23.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 9 May 2023. The applicant was present and was thus given the opportunity to present her case to the Board in person.

24.  As said, the Board laid out its assessment of the applicant’s claimed risks in paragraphs 31 to 33 of the Board’s Decision, and it is not necessary to repeat the same here.

25.  In gist, concerning the applicant’s fear of harm from the creditor, the Board found that the applicant was not the actual debtor of the loan. The lack of action by the creditor against her husband, who was the actual debtor, together with the availability of a valuable asset available to allow the repayment of the loan, led the Board to find that there was simply no basis whatsoever to conclude that there was any risk to the applicant.

26.  As to the applicant’s fear of her husband, the Board noted from the applicant’s own evidence that her husband had divorced her and wanted no further part of the previous marriage. The Board found it difficult to understand why there would be a risk of repetition of domestic violence, since the marriage had ended from the husband’s perspective and the applicant would not be returning to live with him. In the circumstances, the Board took the view that the risk of domestic violence did not exist.

27.  The Board explicitly added that even if it was wrong in the above conclusion, reasonable state protection would be available to the applicant in the unlikely event that the loan shark or her husband sought to harm her. Moreover, internal relocation would be reasonable and not unduly harsh for the applicant to avoid any perceived harm.

28.  Thus, the Board concluded that the applicant failed to establish a case for non-refoulement protection in Hong Kong.

29.  The finding of facts relating to a non-refoulement claim, 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. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

30.  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.

31.  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

32.  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