Sutiyem v. Torture Claims Appeal Board

Case No.HCAL 1104/2023[2025] HKCFI 6049

Court

High Court CFI

Date09 Dec 2025

Judge—

Case Document

100%Judiciary

HCAL 1104/2023

[2025] HKCFI 6049

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1104 OF 2023

BETWEEN
	Sutiyem	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 or counsel in open court;

Order by Deputy High Court Judge Michael WONG:

1. The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

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 6 July 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 16 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/HCAL001104_2023_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 21 July 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.

The applicant’s case

3.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.

4.In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed or killed by the creditor from whom her husband borrowed 50 million Rupiah. Her husband did not repay the loan and disappeared. The creditor threatened to kill the applicant if she did not repay the loan, as she was named as a guarantor.

Withdrawal of the Leave Application

5.Before the Leave Application was dealt with, the applicant filed an affirmation dated 6 August 2025 to withdraw the Leave Application.

6.As stated in the applicant’s affirmation, she wanted to apply for leave to withdraw the Leave Application because she wanted to go back to Indonesia. However, she did not state that it was safe for her to go back to her home country.

7.There is no evidence to show that the applicant made the withdrawal application other than out of her own volition. With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing of the Leave Application even though she had previously requested one.

8.However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

9.Thus, it is not right to leave the action at large. The applicant’s application to withdraw the Leave Application is therefore refused and this court will proceed to deal with the merits of the Leave Application.

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 Form 86.

12.In her supporting affirmation dated 6 July 2023, under the heading “GROUNDS FOR JUDICIAL REVIEW”, the applicant stated 6 grounds, which are summarised as follows:-

(1)  the adjudicator did not consider her claim;

(2)  the adjudicator did not accept her documents as the documents were in her mother language;

(3)  the officer refused to give her time to translate the documents because he had no time;

(4)  the translator did not help her at all and became angry if the applicant did not understand;

(5)  the interpreter asked her not to take long time for interview as he had another job; and

(6)  she asked the court to help her and save her life.

Discussion

13.First of all, the above grounds (except ground (6) which is not a ground at all) were asserted without any specificity. Many applicants in similar applications used them like a template without any regard to their own case. The applicant is no exception. She did not state (1) how the adjudicator did not consider her claim; (2) which part(s) of her claim was not considered; (3) what documents she intended to submit were rejected as they were not translated; (4) how the interpreter or translator’s attitude had prejudiced her; and (5) what she wanted to tell the Board was not presented because of the attitude of the interpreter or translator.

14.The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.

15.Thus, the general assertions that were contained in the applicant’s affirmation cannot help her at all.

16.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).

17.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 specific ground being advanced by the applicant for the intended judicial review.

18.In assessing the applicant’s appeal, the Board held an oral hearing on 2 May 2023. The applicant was present and had an opportunity to present her case to the Board in person.

19.The Board presumed for the applicant’s benefit that she might be a witness of truth.

20.After due consideration of the evidence and the oral testimony of the applicant, the Board found that even taking her case to its highest, the loan shark had merely issued verbal threats but had done nothing else despite the passage of time and the failure to recoup his loan. There was no evidence that the loan shark had taken any serious action against her husband, who was the actual debtor, or against his or her family members as a result of the loan, about which the applicant knew nothing at all. The Board thus found that there was no basis whatsoever to conclude that there was any risk to the applicant.

21.The Board also found from extensive country of origin information (“COI”) that the applicant would benefit from reasonable state protection in the very unlikely event that the loan shark sought to harm her upon her refoulement.

22.Further, the Board found that the applicant could safely and reasonably relocate to a different part of Indonesia. Her husband clearly managed to avoid the creditor, and there was no evidence to suppose that the loan shark would have any means, power or influence outside her home area to locate her were she to move to one of the many large cities in Indonesia.

23.Moreover, the applicant, who had significant and long-term work experience, would be able to establish her life upon relocation. The applicant could provide no reason why she could not relocate to Jakarta and live with her two children who were living there and supporting themselves through employment. The Board found that it would be plainly reasonable for her to do so.

24.The Board also found that the applicant had failed to establish that she would face a real risk of persecution as defined in the 1951 Refugee Convention or torture as set out in Part VIIC of the Immigration Ordinance. There was no basis to conclude that the applicant faced any real risk of ill-treatment or arbitrary deprivation of life upon refoulement.

25.The assessment of evidence, COI materials and risk of harm was primarily within the realm of the Board. The applicant’s alleged danger in her home country had indeed been duly assessed by the Board. This court finds no errors of the Board in reaching its decision based on all the evidence before it.

26.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.

27.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

28.For reasons aforesaid, the application for leave to withdraw the Leave Application is refused and the Leave Application is dismissed.

Dated the 9^th day of December 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 his 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: 9 December 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: 9 December 2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 20716 Director of Immigration Putative interested party’s ref. no.: QA T/C 597/22 (formerly RBCZ 5000445/22) (T1I93) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)