Reni Ochtafiana v. Torture Claims Appeal Board
Read the full judgment text of HCAL 1726/2024 on BabelCite. This High Court CFI judgment was delivered on 14 January 2026.
1. By way of Form 86 dated and filed on 2 October 2024, 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 1 February 2024 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:
Cites 5 cases
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HCAL 1726/2024 [2026] HKCFI 274 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1726 OF 2024
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 2 October 2024, 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 1 February 2024 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink: 2.The Board found that the applicant had failed to demonstrate that she was entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 20 November 2023 and confirmed the same. Amendments 3.The applicant named the Board and Non-Refoulement Claims Petition Office as both the putative respondents and the putative interested parties in Form 86. 4.In fact, only the Board should be the putative respondent and the Director should be the putative interested party. 5.The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a party at all. 6.Thus, this court 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”. Late application 7.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made. 8.However, the applicant filed Form 86 on 2 October 2024, which was more than 8 months after the Board’s Decision (made on 1 February 2024). The applicant was hence late for more than 5 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application. 9.As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:
10.The applicant did not make any application for extension of time to file the Leave Application and provided no reason for the delay when making the application. The delay of more than 5 months is substantial. More importantly, as discussed below, there is no merits of the intended judicial review at all. Thus, this court is not prepared to extend the time for the applicant to file the Leave Application even if an application for extension of time was made. The Leave Application can be dismissed on the ground of being made out of time alone. 11.However, for the sake of completeness, this court will still examine the merits of the Leave Application. The applicant’s case 12.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. 13.In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be at risk of being harmed by a moneylender, whom she had never met, due to her inability to repay a loan of 80 million Indonesian Rupiah (“IDR”) to the moneylender. Withdrawal of the Leave Application 14.Before the Leave Application was dealt with, the applicant filed an ex parte application by way of her affirmation dated 14 July 2025 to cancel all her non-refoulement claims including the Leave Application. However, she did not state that it was safe for her to return to her home country or that her problem in her home country had been solved. 15.There is no evidence to show that the applicant made the above withdrawal application other than out of her own volition. With the 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. 16.However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-
17.Thus, it is not right to leave the action at large by granting leave to withdraw to the applicant. This court will proceed to deal with the merits of the Leave Application. Grounds for judicial review 18.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). 19.The applicant did not assert any grounds for her intended judicial review in Form 86. In her supporting affirmation dated 2 October 2024, she merely repeated her danger in Indonesia that the loan sharks would kill her as she did not have money to pay the debt. Discussion 20.First of all, the applicant’s claimed threat from the moneylender had already been assessed but rejected the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review. 21.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). 22.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 valid ground being advanced by the applicant for the intended judicial review. 23.In assessing the applicant’s appeal/petition, the Board arranged an oral hearing on 18 January 2024 and the applicant was present. Thus, the applicant did have the opportunity to present her case to the Board in person. 24.Having considered the applicant’s claims, all the evidence and country of origin information (“COI”), the Board found multiple aspects of the applicant’s claims implausible. It was implausible for the moneylender to charge the applicant only 15% per annum as interest. The claimant’s allegation was inconsistent with the relevant COI, which showed that the moneylenders in Indonesia charged much higher interest rates. It was also implausible for the applicant to obtain an 80 million IDR loan, which was not a small sum, without having met the moneylender even once, only through a friend who lived in a mountain area who was not the moneylender’s agent and without signing any written loan agreement nor providing the moneylender her identification documents. It was also implausible for the moneylender not to go to the applicant’s home to locate her or ask for her whereabouts after the applicant allegedly blocked the calls from him. 25.Further, the Board found the applicant’s explanations, or the implausibilties of them, for (1) the need to obtain two Indonesian passports; (2) the loss of her second passport and Hong Kong Identity Card; (3) how she managed to survive in Hong Kong for 22 months without any income, etc, as negative indicators of her credibility. The applicant only made a non-refoulement claim about 20 months after her employment in Hong Kong was terminated in November 2021 and after she was arrested. 26.Moreover, the applicant was also inconsistent in her evidence as to the times she was called by the moneylender, and she was actually unable to ascertain that the calls she allegedly received were from the moneylender. 27.The Board thus found that the applicant was not a credible witness. The Board did not accept that the applicant borrowed 80 million IDR from the moneylender or that the money was borrowed for her father’s medical expenses. The Board had no doubt that this aspect of the applicant’s claim was simply a fabrication, and the inconsistencies of the applicant’s story were fatal. 28.As to the applicable grounds under the USM, the Board found that even the alleged ill-treatment from the moneylender was not rejected, the applicant’s claim for non-refoulement protection would also fail. Her fear arose only from her inability to repay a personal debt. The state was not involved in any ill-treatment of the applicant. The alleged ill-treatment did not fall within the meaning of torture as defined in section 37U of the Immigration Ordinance, and was not inflicted on her for a Convention reason. The applicant did not suffer any injury at all. Further, reasonable state protection was available to the applicant. 29.With the findings as summarised above, the Board was not strictly required to assess the viability of internal relocation for the applicant. The Board, however, did so as a matter of caution and found that there was no evidence that the moneylender could do harm to her throughout the whole country. The applicant had many years of work experience as salesperson and domestic helper. The Board found that it would not be unduly harsh for the applicant to relocate within Indonesia to lower or negate the perceived risk of ill-treatment upon her return to her home country. 30.Thus, the Board found the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM. 31.The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion. 32.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. 33.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 applicant has failed to establish such a claim and hence leave must be refused. Conclusion 34.For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed for being made out of time and devoid of merits. Dated the 14th day of January 2026
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
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Cases cited in this judgment