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

HCAL 1496/2022

[2026] HKCFI 2165

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1496 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:

1.   Form 86 be amended, naming only 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 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 9 December 2022 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 6 January 2022 (the “DOI Decision”).

2.I amend the Form 86 on my own motion, naming only the DOI as the putative interested party.

3.The Applicant requested for a hearing of this application and attended the same. When asked, she said she had nothing to add.

Background

4.The Applicant is a national of Indonesia. In gist, she fears that she will be killed by either her former husband or loan shark if she returns to Indonesia. 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

5.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.

6.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.

7.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.

8.The Applicant sets out 3 grounds in the supporting affirmation. In gist, she claims that there has been procedural impropriety in the TCAB’s decision as the TCAB failed to consider the fact that she would face real risk upon refoulement. However, these “grounds” are general, vague and devoid of substance, and, in truth, did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

9.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 [35-59]. In particular, the TCAB found that the Applicant’s evidence in relation to both her husband and the loan shark was not credible [46]. As regard the former, given that she had not heard of him for more than 2 and a half years since the alleged threat, and that since the time he had divorced her and remarried and lived with his new wife and child, her claim that he insisted on her living with him again was not credible [48]. Indeed, the credibility about the nature of the alleged threats was in question [43]. As regard the latter, her account was fraught with inconsistent statements [49].  For example, she claimed that she had to borrow money partly because of her father’s medical expenses, but stated that the issue with her father did not arise until some months after [38]. She also gave conflicting evidence as to when and why she borrowed the money, and had little knowledge about the alleged loan shark [44, 49]. The TCAB was perfectly entitled to come to these conclusions.  

10.It is plain from the above that the TCAB did give meticulous consideration of her evidence concerning her alleged risk of harm, contrary to the grounds she raised.

11.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 20^th day of April 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