Rita Haryanti Agustin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1494/2022

[2026] HKCFI 1788

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1494 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) Jeffrey Chau:    

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

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 14 December 2022 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 23 November 2022 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 4 May 2022 (the “DOI Decision”).

2.The Applicant requested for a hearing of this application. When asked, she said she had nothing to add.

3.The Applicant is a national of Indonesia. In gist, she fears that her husband will harm her if she is refouled as she had an affair in Hong Kong which led to her giving birth to her younger son. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them. Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

Discussion

4.The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

5.I remind myself that in a judicial review, this court does not provide a further avenue of appeal. While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  A finding of fact is exclusively within the realm of the TCAB, and this 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 TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

6.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

7.The Applicant did not state any grounds on which the relief is sought other than that she did not agree with the TCAB Decision. Thus, it did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

8.As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [11-53, 62-79]. In particular, the TCAB found that the Applicant had not provided any credible explanation and support for her claims of domestic violence [27-31].  Instead, the TCAB found that her accounts of the events were inconsistent and totally unpersuasive, and noted that her accounts of the events that occurred during the hearing was completely different from the accounts to the NCF and at the interview [37-46].  For example, she said in the NCF and at the interview that she agreed to go out with her husband when he came to her home and asked her out for a walk, while at the hearing, she told the TCAB that he pulled her out of her home and dragged her onto his motorcycle [39-40]. Although the TCAB accepted the Applicant’s claim that her last contact with her husband was in 2018, it noted the inconsistency in her statement that she suffered domestic violence from her husband in March 2020 [46].  Given the inconsistencies in her account of the events, the TCAB did not accept her alleged previous incidents of domestic violence, ill-treatment or other kinds of harm from her husband [47]. In any event, the TCAB considered that she could safely and reasonably relocate to another area in Indonesia [54-61].  Thus, the present application was bound to fail.

9.All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed.

Dated the 30^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