Esti Wahyuni Bt Tohidi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1553/2022

[2026] HKCFI 2172

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1553 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 21 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 31 December 2021 (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 if she had anything to add, she said that she was already married and was waiting for her dependent visa which was still under process.

Background

4.The Applicant is a national of Indonesia. In gist, she fears that she will be harmed or killed by her creditor if she returns to her home country as she could not repay her loan. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB’s 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 did not state any grounds on which the relief is sought other than stating in the supporting affirmation that “I don’t want go back Indonesia because my life very danger because of my loan shark They will kill me if I in Indonesia, Because I can’t pay the debt, I Don’t have money to pay the Debt. Please save my life. Please give me live in Hong Kong. Because only in Hong Kong I feel savety (sic).” Hence, she did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.

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 [61-80, 98-102]. In particular, the TCAB found, which the Applicant accepted, that her evidence in support on the particulars of the claim was based solely on her assertion with no (documentary) evidence adduced to support the same [59(i)]. Moreover, the TCAB found it unconvincing that her creditor would be able to lend her and her parents money only on the basis of her working overseas; it was agreed by the Applicant that the creditor did not know of her ability to repay the loan [59(vi)-(vii)]. Importantly, the TCAB also concluded, which she confirmed, that her creditor had not harmed any one in her family despite living close, and had never directly threatened her [59(xii)-(xiii)]. In view of the above findings, the TCAB did not find that the Applicant’s claim was credible and did not accept that her father’s hearsay evidence was reliable to support her case that she would be harmed or ill-treated by her creditor if she was refouled [80]. In any event, the TCAB concluded, in my view correctly, that state protection and internal relocation would be available to her [86-87]. 

10.I have also considered the Applicant’s oral submissions. The Applicant’s visa application in Hong Kong are not valid grounds or relevant consideration in relation to her own non-refoulement claim: Oguzie Ikechukwu Charles v Torture Claims Appeal Board, unreported, CACV 469/2021, 21 January 2022, [2022] HKCA 135, at [20] and Re Adeel Muhammad, unreported, CACV 71/2022, 7 August 2023, [2023] HKCA 948 at [7].

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