Arifin Ismiati Binti v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1057/2023

[2026] HKCFI 2445

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1057 of 2023

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only:          or
	consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 23 June 2023 of the Torture Claims Appeal Board (“the Board’s Decision).

2.The applicant appeared before the Court on 15 April 2026.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

4.The Board’s Decision is in Chinese whereas this Form CALL-1 is in English because the applicant has submitted a written submission in English to the Court.

The applicant

5.The applicant is a national of Indonesia. She is an illegal immigrant. She lodged a non-refoulement claim on the basis that, if refouled, she will be harmed or killed by her brother because her father had sold a piece of land for repayment of a debt for her and her brother had a half share of the value of the land.    

6.Details of her claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001057_2023_files/the_Board's_Decision.pdf

The Director’s Decision

7.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.By way of the Notice of Decision dated 26 July 2022 (“Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 9 May 2023, the Board conducted an oral hearing for her. The applicant had given evidence and answered the Board’s questions.

10.Having considered the evidence, the Board made the findings below.

(1)  There was no evidence that the brother had physically injured or caused pain to the applicant. [45]

(2)  The brother threatened the applicant with death out of his anger for losing his share of the value of the piece of land sold by his father. He did not have the intention to harm or kill her. [47]

(3)  State protection will be available if she returns to Indonesia. [70]

(4)  Internal relocation is viable. [107]

11.For the above reasons, the Board dismissed her appeal and affirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

12.The applicant has filed Form 86 dated 30 June 2023 for leave to apply for judicial review of the Board’s Decision.

13.In support of her application, the applicant has raised the grounds below.

(1)  The adjudicator did not consider her claim and dismissed her appeal.

(2)  She intended to submit some documents, which the adjudicator refused to accept because he did not understand them,

(3)  She requested the adjudicator to give her some time to translate the documents in English. But the translator did not help her. The translator was hostile to her. He told her not to take too long because he had another job.

DISCUSSION

14.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that she has told the Board her full story. She further confirmed that the Board’s Decision is not wrong. But she still felt threatened if she returned to Indonesia.

16.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.”

17.As to the grounds under paragraph 13, (1) is a general assertion without any evidence in support. As to (2) and (3), before the Court, the applicant did not mention what documents she intended to produce to the Board and the purpose of those documents will serve. She did not produce those documents to the Court. In view of her admission that she did not consider that the Board’s Decision is wrong, those reasons have become insignificant. Her subjective fear is not a valid reason in support of her application.

18.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

19.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 29^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