Yesi Rosliana v. Torture Claims Appeal Board
Read the full judgment text of HCAL 2395/2023 on BabelCite. This High Court CFI judgment was delivered on 22 April 2026.
1. By way of Form 86 dated and filed on 29 December 2023, 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 20 December 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
Cites 3 cases
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HCAL 2395/2023 [2026] HKCFI 2281 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2395 OF 2023
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 29 December 2023, 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 20 December 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 16 June 2023, which rejected the applicant’s non-refoulement claim. Amendments 3.In Form 86, the applicant named the Board and “non-refulement Claims Petition Office” as both the putative respondent and the putative interested party. 4.In fact, only the Board should be named as the putative respondent and the Director should be named as 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.This court therefore 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”. The applicant’s case 7.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. 8.In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed or killed by a money lender with high interest rate, as her mother had borrowed 100 million Indonesian Rupiah (“IDR”) from this money lender and told the money lender that her son and daughter would help her to repay the loan. Oral hearing 9.The applicant requested for an oral hearing of the Leave Application, and her case was heard on 9 April 2026. 10.When this court asked the applicant for the grounds of her intended judicial review, the applicant only said that she wanted to stay in Hong Kong and she did not know what was wrong with the Board’s Decision. Grounds for judicial review 11.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). 12.The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 29 December 2023. She merely mentioned in the affirmation that she did not want to go back to Indonesia, her life was in danger there because her loan sharks would kill her due to her inability to pay the debt. 13.As aforesaid, at the oral hearing, the applicant merely said that she wanted to stay in Hong Kong. Discussion 14.First of all, the applicant’s danger upon refoulement had been assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. 15.Her wish to stay in Hong Kong is not a valid ground for judicial review either. 16.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). 17.Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality. 18.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 10 November 2023. The applicant was present at the hearing. Thus, the applicant did have a chance to present her case to the Board in person. 19.As can be seen from paragraphs 93 to 103 of the Board’s Decision, the Board had given full and detailed reasoning as to why it rejected the core account of the applicant, including (1) her mother borrowed 100 million IDR from a money lender in September 2022; (2) In February 2023, the loan shark came with henchmen, vandalized the house and threatened the applicant’s mother that he would harm her 3 children; and (3) Consequently, the applicant’s mother called her and told her not to come back to Indonesia. 20.The Board found that the crucial aspects of the applicant’s core claims were contradictory and her testimony was a manifestation of inconsistencies, inventions and implausibility. The Board thus found that the applicant was not a credible witness. 21.In any event, the applicant had not suffered any harm or threats of death or harm from any money lender or henchmen of the money lender. There was no evidence at all that the applicant was being persecuted for any of the Convention reasons. The applicant did not face any adverse attention of the authorities if she was returned to Indonesia. 22.Moreover, the Board found from extensive, fully-referenced country of origin information (“COI”) that despite the existence of corruption, the Indonesian government was taking steps to combat the problem. The Board found that there was an absence of a consistent pattern of gross, flagrant or mass violations of human rights in Indonesia. There was no evidence that the Indonesian government was unwilling or unable to provide effective protection to the applicant. The applicant had not reasonably exhausted all avenues of state protection open to her. 23.In addition, the Board had also given full reasons in paragraph 160 of the Board’s Decision as to why it found that the applicant could reasonably live without fear of the alleged harms and undue hardship, if she relocated to other areas in Indonesia such as Surabaya, Jakarta and Semarang. 24.In view of its findings, the Board did not consider that the applicant would face a real risk of any of the proscribed forms of harm should she return to Indonesia. Thus, the Board rejected the applicant’s claims for non-refoulement protection in Hong Kong. 25.The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision. The applicant’s alleged dangerous situations had been fully considered but rejected by the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decision. 26.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. 27.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that 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 28.For reasons aforesaid, the Leave Application is dismissed.
Dated the 22nd 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
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Cases cited in this judgment