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

HCAL 1149/2025

[2025] HKCFI 5777

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1149 of 2025

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

Following:

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 25 April 2025 of the Torture Claims Appeal Board (“the Board’s Decision).

2.The applicant did not request an oral hearing.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Indonesia. She is an illegal immigrant. She has lodged a non-refoulement claim with the Immigration Department on the basis that, if refouled, she will be harmed or killed by her ex-husband because she had an affair with another man. Her husband was enraged. She intended to divorce him. He disagreed and threatened that he would kill her.

5.Details of her claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001149_2025_files/the_Board's_Decision.pdf.

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By way of the Notice of Decision date 9 January 2025 (“Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 19 March 2025, the Board conducted an oral hearing for her. She had given oral evidence and answered the Board’s questions.

9.Having considered the evidence, the Board made the findings below.

(1)  The applicant had not told the truth or the whole truth. [35]

(2)  The Board did not accept that the applicant was married to her ex-husband or she intended to divorce him. [40]

(3)  Therefore, the Board was not persuaded that the applicant will face serious harm or death if she returns to Indonesia. [41] – [42]

(4)  Even if her story were true, state protection will be available to her. [70]

(5)  Internal relocation is viable. [71]

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 19 May 2025 for leave to apply for judicial review of the Board’s Decision.

11.The applicant has not raised any specific ground to challenge the Board’s Decision.

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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 Board.”

15.The applicant has raised no valid ground to challenge the Board’s Decision.

16.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

17.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 2^nd day of December 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