Supriasih v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 583/2020

[2025] HKCFI 2861

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 583 of 2020

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 the Applicant being absent in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) YW Hew:

1.  The Form 86 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent and only the Director of Immigration as the Putative Interested Party, adding “/Non-Refoulement Claims Petition Office” before the words “on my non-refoulement case”, and substituting “23 March 2020” in place of “15-01-2020”;

2.  Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.The Applicant is an Indonesian national. By a Form 86 dated and filed on 9 April 2020 (“Form 86”), which was accompanied by a supporting Affirmation also dated and filed on 9 April 2020 (“the Affirmation”), the Applicant sought leave for judicial review.

2.The Applicant sought an oral hearing of her leave application. However, she did not appear at such. I have hence proceeded to deal with her application on the papers.

3.The Form 86 as filed identified the relevant decision made by the Torture Claim Appeal Board (“TCAB”) on the Applicant’s non-refoulement case as being dated “15‑01‑2020”. However, the TCAB made no decision on that date. Rather, there was a hearing before the TCAB and Non-Refoulement Claims Petition Office (“NRCPO”) on 15 January 2020, which resulted in the TCAB/NRCPO rejecting the Applicant’s non‑refoulement claims by way of a decision dated 23 March 2020 (“TCAB Decision”)[1].

4.The Affirmation exhibited the TCAB Decision and stated “I would like to reject and review the decision made by the [TCAB] on my non-refoulement case on 23/3/2020. They disregard my dangerous situation.”

5.In the circumstances, I took it and have amended the Form 86 of my own motion to reflect the correct date of the TCAB Decision, and to identify it as a decision of the TCAB/NRCPO. I have also amended the Form 86 of my own motion to name only the TCAB/Non-Refoulement Claims Petition Office as the only putative respondent, only the Director of Immigration as the putative interested party.

Background

6.The Applicant’s background and case as to the incidents underlying her claim for non-refoulement relief, and the immigration and procedural history leading up to the TCAB Decision, are set out in the same (Paragraphs 1 to 31). For the sake of concision, I will not repeat them, but in essence:

a.  The Applicant’s claim for non-refoulement relief on the basis of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] stems from a fear of the risk of being harmed or killed by her husband (“Husband”) should she be returned to Indonesia, there is no state protection, and internal relocation is not a viable option; and

b.  The said non-refoulement claims under Torture Risk, BOR 2 Risk, BOR 3 Risk, Persecution Risk were rejected by a decision of the Director of Immigration dated 28 October 2019 (“Director’s Decision”).

c.  The Applicant then filed a petition to the TCAB, and as I have mentioned an oral hearing was held by the TCAB.

7.At that hearing, and as recorded in Paragraph 32 of the TCAB Decision, the contents of the Applicant’s Non-Refoulement Claim Form (“NCF”) and her records of interview (“Interview Records”) were confirmed by her as true and correct, and adopted as her evidence, and she then answered questions from the TCAB/NRCPO.

Legal Principles

8.An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142).

9.It is trite that judicial review is not a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the 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/NRCPO: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886.

10.In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

11.The Form 86 does not identify any grounds of judicial review. The closest the Applicant gets to doing so in the papers is the vague and amorphous allegation in her Affirmation that the TCAB/NRCPO had “disregard[ed] [her] dangerous situation”. It is unclear whether, how, and why the Applicant alleges any procedural unfairness in relation to, and/or of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB/NRCPO Decision.

12.Nevertheless, given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard.

13.I have already summarised the contents of TCAB Decision Paragraphs 1 to 32. Further to such, the TCAB Decision summarises the Applicant’s testimony at the hearing (Paragraphs 33 to 40), sets out the contents of various COI (Paragraph 41), and then sets out the general legal principles that the TCAB had applied to the hearing of the petition, including the burden and role of the parties and the standard of proof (Paragraphs 42 to 47).

14.Importantly, the TCAB then assessed the Applicant’s credibility and (applying a low standard of proof) rejected the Applicant’s evidence on the basis of her claim as being “incredible and unreliable”. This included (fairly read and in particular) the allegations that her husband was in debt, his apparent use of the land deed, and the threats he had apparently made to her. In doing so, the TCAB gave adequate reasons (Paragraphs 48 to 59 and 92, cf. Paragraphs 3 to 40).

15.The TCAB then concluded, as it was entitled to, that there was hence no basis for the Applicant’s claim for non-refoulement relief. However, the TCAB went on to analyse and conclude that even on the facts advanced by the Applicant she would not face any Torture Risk, BOR 3 Risk, BOR 2 Risk, or Persecution Risk if refouled, giving reasons and conclusions as to risk of harm, that there was effective state protection, and that internal relocation was both reasonable and safe (Paragraphs 60 to 91).

16.Finally, given the TCAB’s views as to the evidence of the Applicant, and the aforesaid analysis, there was no real risk pertinent to the four applicable grounds, and the Petition was dismissed (Paragraph 92-93).

17.Having subjected the TCAB Decision to rigorous examination and anxious scrutiny, I do not see that the Applicant has any reasonably arguable case of procedural unfairness (even bearing in mind the need for a high standard of fairness), error of law, and/or irrationality failure to meet the enhanced Wednesbury test in relation to the TCAB Decision. This is particularly so as to, and given, the assessment, reasoning, and findings rejecting the Applicant’s evidence and story in support of her claim, and consequently the risk of harm, Persecution Risk, Torture Risk, BOR 3 Risk, and BOR 2 Risk, which are all matters primarily within the province of the TCAB. There is hence no basis to interfere with the TCAB’s/NRCPO’s findings of fact on matters which are primarily within its province.

18.Given the TCAB Decision and the aforesaid analysis, I do not see that the claim made by the Applicant in her Affirmation is relevant or substantiated. I therefore reject such.

19.I am therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

20.In the circumstances, I have ordered that the application for leave to apply for judicial review be dismissed.

Dated the 10^th day of July 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