Case Document

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HCAL 296/2020

[2025] HKCFI 2730

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 296 OF 2020

BETWEEN
	Solikatun Januri	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

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 in open court;

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 “the Torture Claims Appeal Board’s decision dated 23 January 2020”.

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 3 March 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Immigration Department dated 23 January 2020.

2.Regarding the applicant’s claim for non-refoulement protection, the Director of Immigration (“the Director”) made a decision dated 27 November 2018 (“the Director’s Decision”) whereas the Torture Claims Appeal Board ("the Board") made a decision dated 23 January 2020 (“the Board's Decision”). The Leave Application must therefore be made in respect of the Board’s Decision. The applicant also confirmed the same at the oral hearing before this court on 22 April 2025. The Board’s Decision can be viewed in the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000296_2020_files/the_Board's_Decision.pdf

3.The Board denied the applicant’s claims for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board denied the applicant’s appeal and confirmed the Director’s Decision.

Amendments

4.The applicant wrongly named “Immigration Department” as the putative respondent and the putative interested party in Form 86. This court therefore 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”.

5.As aforesaid, the decision in respect of which relief is sought is amended to “the Torture Claims Appeal Board’s decision dated 23 January 2020”.

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 she feared being ill-treated or killed by her ex-boyfriend if she returned to Indonesia.

Oral hearing

8.The applicant requested for an oral hearing of her application and her case was heard on 22 April 2025.

9.The applicant said that she wanted to stay in Hong Kong to take care of her 14-year-old son and her disabled husband who are both Hong Kong residents.

10.When questioned if she had applied for dependency status, the applicant replied that she did not as she thought that her application would be rejected because her husband was unemployed and living on government subsidy.

Grounds for judicial review

11.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).

12.However, the applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 3 March 2020. She merely stated in the affirmation that she would like to reject and review the decision made by the Immigration Department and they “diseford” [sic] her dangerous situation.

13.What the applicant told this court at the oral hearing could not amount to any grounds for judicial review either.

Discussion

14.First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as there are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, [2018] HKCA 549). This court will therefore consider the Leave Application in respect of the Board’s Decision only.

15.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).

16.Thus, despite that the applicant has failed to advance any valid grounds for judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

17.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 3 June 2019 and the applicant was present. The Board accepted most of the applicant’s story but found the applicant not facing a real risk of being ill-treated or killed by her ex-boyfriend. The Board further found that state protection and assistance from non-government organizations were available. Moreover, the alleged risk from the applicant’s ex-boyfriend was a localized one. Internal relocation was viable and would not be unduly harsh given the applicant’s extensive work experience. Any risk from the applicant’s ex-boyfriend would be almost entirely eliminated if she settled in another area of Indonesia.

18.Thus, the Board did deal with the applicant’s alleged danger in the Board’s Decision and concluded that she was not entitled to non-refoulement protection on any of the applicable grounds under the USM.

19.The finding of facts was solely within the ambit of the Board. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion based on the evidence available to the Board.

20.The fact that the applicant has a husband and a son who are both permanent Hong Kong residents is irrelevant to the Leave Application. In any event, the Board had also considered whether family unity rights might constitute a bar to the applicant’s refoulement. Having considered the principles as set out by the Court of Final Appeal in Comilang & Ors v Director of Immigration [2019] HKCFA 10, the Board concluded that these rights were not a bar to refoulement of foreign nationals without a right of abode, even when they have a spouse and children who are permanent residents of Hong Kong.

21.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.

22.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed 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

23.For reasons aforesaid, the Leave Application is dismissed.

Dated the 2^nd day of July 2025

( Irene LEE )
for Registrar, High Court

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:
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)).		Sent/Handed to the applicant/the applicant’s solicitors on 2 July 2025 Applicant’s ref. no: Nil		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 July 2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 14823/18/12/180/I1580 Director of Immigration Putative interested party’s ref. no.: QA T/C 4282/18 (formerly RBCZ 11265/17) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)