Titis Prih Susanawati v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3845/2019

[2025] HKCFI 1523

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3845 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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

Order by Deputy High Court Judge (Non-refoulement Claims) Martin Wong:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 24 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) dated 16 December 2019 (the “TCAB Decision”), which affirmed the decision by the Director of Immigration (the “DOI”) dated 7 August 2019 refusing the Applicant’s non-refoulement protection claim. The TCAB was named as the proposed respondent and the DOI was named as an interested party.

2.The Applicant requested for a hearing of this application and she attended the same. When asked if she had anything to add she confirmed that she had not.

Background

3.The Applicant is a national of Indonesia. She seeks non-refoulement protection on the basis that she will be harmed or killed by her husband as she failed to remit money to him despite his demand. Her personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

4.In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision‑makers. This court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676).

5.In her affirmation filed in support of the Form 86, the Applicant raised the following complaints against the TCAB Decision :-

5.1.  She was not given an opportunity to put forward her submissions in an oral hearing or invited to submit written submissions;

5.2.  The TCAB relied on news which was not from officially recognised sources, or simply hearsay, and the TCAB’s conclusion that she could safely return to Indonesia was therefore groundless speculation;

5.3.  The TCAB relied on cases that were fairly outdated.

6.As to the first complaint, it is factually wrong: the TCAB in fact held an oral hearing for the Applicant’s appeal, the Applicant did attend and with the assistance of a suitable interpreter [7] and there were exchanges on matters that the TCAB specifically raised with the Applicant [38-54].

7.As to the second complaint, COI was placed before the TCAB [8] and the TCAB in fact had exchanges with the Applicant in respect of specific information stated therein [50]. The COI considered by the TCAB was of various vintage, but in coming to the conclusion that the Indonesian government has put in place a range of measures to assist those returning to Indonesia to reintegrate and help with transportation and settlement services, and thus internal relocation was available to the Applicant [67], the TCAB referred to and relied on materials such as a US Department of State report in March 2019 [63] and report submitted by the Indonesian government to the UN May 2017 [66]. This complaint is entirely unsubstantiated.

8.As to the third complaint, the TCAB set out in full the applicable principles to all four applicable grounds under the USM [11-30], internal relocation [31-32], the assessment approach [33-37], and correctly applied them in coming to the relevant conclusions [55-79]. There is nothing in terms of law cited that was “outdated” as far as I can see.

9.All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision as alleged or otherwise, despite rigorous examination and anxious scrutiny.

Conclusion

10.For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

Dated the 12^th day of May 2025

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