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

HCAL 461/2022

[2026] HKCFI 1221

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 461 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

Order by Deputy High Court Judge (Non-refoulement Claims) Sabrina Ho:

1.   Form 86 be amended by naming the Director of Immigration as the putative interested party.

2.   The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 13 June 2022 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the Decision by the Torture Claims Appeal Board / Non refoulement Claims Petition Office dated 20 April 2022 (the “Board”, the “Board’s Decision”).

2.I will amend the Form 86 on my own motion to name the Director of Immigration (the “Director”) as the putative interested party.

3.In the Affirmation in support of the Leave Application (the “Affirmation”), the Applicant exhibited a copy of the Board’s Decision and raised the following grounds in support of the Leave Application:

a.   Procedural impropriety – failure to properly apply paragraph 2 of the UN Committee against Torture General Comment No. 2 whereby satisfaction of a national state’s obligations to conduct sufficient due diligence requires that reforms and means of relief introduced by the state must be effective, as opposed to merely showing signs of positive improvement, citing Re: JKF CACV 103/2014 (unrep., 25/11/2014);

b.   Procedural impropriety – failure to conduct sufficient inquiry into the relevant country of origin conditions.  The Board failed to consider that the Applicant would face serious risk from his enemies who will harm him because he failed to repay the loan;

c.   Procedural impropriety/irrationality - failure to give reasons for the assessment of risk under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance (the “BOR 2 Risk”) or to give sufficient basis to support the conclusion on the BOR 2 Risk and Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance (the “BOR 3 Risk”) assessment;

d.   Error/misdirection in the law – failure to take into account the consideration of psychological strain and threats to the Applicant;

e.   Procedural impropriety – failure to consider the Applicant’s fear of his enemies, and that the Applicant cannot relocate to other places in Indonesia as the enemies could easily trace him;

f.   No sufficient basis to conclude that the Applicant and his family would not be at risk of being subject to torture and/or cruel, inhuman or degrading treatment or punishment upon refoulment.

Background

4.The Applicant’s background, the basis of her claim and the arguments she advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below[1] for reference.

Discussion

5.The relevant legal principles are well established.  The Court’s role in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases, 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 should not usurp the role of the Board.  Assessment of evidence, country of origin information (“COI”) materials, 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, procedural unfairness or irrationality in the decision of the Board: see Nupur Mst v Director of Immigration [2018] HKCA 524 at para 14.  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: see Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

6.Having considered all the relevant materials before me, I do not consider the Applicant’s intended challenge against the Board’s Decision to be reasonably arguable with any realistic prospect of success.

7.I have reviewed the Board’s Decision in detail.  The Board had fully considered the Applicant’s evidence and her grounds for challenging the Director’s decision in refusing his claim for non-refoulment protection.  On the evidence before the Board, it did not consider the Applicant faces any real risk of the Proscribed Harm[2] under any of the applicable grounds from the loan shark Mr Susanto if she returns to Indonesia.  The Board therefore rejected the Applicant’s appeal: see the Board’s Decision paras 24-52.  I do not consider there to be any error of law, procedural unfairness or irrationality in the Board’s Decision.

8.With respect to the Applicant’s complaints in paragraph 3 (a) and (e) above, as the Board had found that the Applicant would not face any real risk of the Proscribed Harm, the Board is entitled not to proceed to consider the level of state protection and internal relocation options for the Applicant: see the Board’s Decision para 41.

9.With respect to the Applicant’s complaints in paragraph 3 (b) above, the Board had considered the COI referred to in the decision of the Director of Immigration dated 23 August 2021. On the other hand, the Applicant had not provided any COI or supporting document to the Board: see the Board’s Decision para 24.

10.With respect to the Applicant’s complaints in paragraphs 3 (c), (d) and (f) above, as mentioned above, the Board has fully considered the evidence of the Applicant before concluding that she would not face any real risk of the Proscribed Harm, including BOR 2 Risk and BOR3 Risk, if she is refouled to Indonesia.

11.Leave application of this sort is meant to be a filtering process and this Court is not expected to give elaborated reasons for its decision: see Re Zunariyah [2018] HKCA 14 at para 23.  I have considered all the relevant materials in reaching the present decision.

Conclusion

12.For the reasons stated above, I will dismiss the Leave Application.

Dated the 16^th day of March 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

Form CALL-1