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

HCAL 1138/2025

[2025] HKCFI 5807

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1138 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.

Observations for the Applicant:

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.

The applicant

3.The applicant is a national of Indonesia. She was an illegal immigrant for the reason that she came to Hong Kong as a visitor, but overstayed since 2 November 2024. She lodged a non-refoulement claim with the Immigration Department.

4.The applicant’s claim was based on her fear of being harmed or killed by her creditor, from whom she had borrowed 100 million Indonesian Rupiah. She was unable to pay the monthly interest of the loan. The creditor had threatened to kill her.  He sent her messages of death.

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/HCAL001138_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 dated 12 February 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 27 March 2025, the Board conducted an oral hearing for her. She had given evidence and answered the Board’s questions.

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

(1)  Her evidence that the creditor was still looking for her was from her mother, which was hearsay evidence and the Board would not attach much weight to it.  [51]

(2)  That she received life-threatening messages from the creditor between 2018 and 2021 was inconsistent with her evidence that she had sold her mobile phone in 2018.  [52]

(3)  The applicant’s evidence was therefore incredible due to vast discrepancies in her evidence.  [53]

(4)  The applicant failed to establish her claim on Torture risk.  [60]

(5)  The applicant failed to establish her claim on BOR 2 risk.  [61]

(6)  The applicant failed to establish her claim on BOR 3 risk.  [65]

(7)  The applicant failed to establish her claim on Persecution risk.  [67]

10.For the above reasons, the Board dismissed her appeal.

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

11.The applicant has filed Form 86 dated 16 May 2025 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant has not raised any specific ground to challenge the Board’s Decision other than saying that she wanted to talk to the adjudicator herself.

DISCUSSION

13.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).

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

15.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.”

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

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

DISPOSITION

18.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 10^th 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