Sri Musriah v. Torture Claims Appeal Board

Case No.HCAL 274/2023[2026] HKCFI 2725

Court

High Court CFI

Date13 May 2026

Judge—

Case Document

100%Judiciary

HCAL 274/2023

[2026] HKCFI 2725

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 274 OF 2023

BETWEEN
	Sri Musriah	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant or counsel in open court;

Order by Deputy High Court Judge Michael WONG:

1.   On this court’s own motion, the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 7 July 2022”.

2.   The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

3.   The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated 20 February 2023 and filed on 22 February 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 6 October 2021.

2.However, the Board only made one decision dated 7 July 2022 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 6 October 2021 (“the Director’s Decision”). It is clear that the date of decision stated in Form 86 was the date of the Director’s Decision.

3.The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, [2018] HKCA 549). Thus, the Board’s Decision should be the subject matter of the Leave Application.

4.The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000274_2023_files/the_Board's_Decision.pdf

5.The Board found that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board dismissed the applicant’s appeal/petition against the Director’s Decision and confirmed the same, which rejected her non-refoulement claim.

Amendment

6.As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision. Hence, it is so amended on this court’s own motion.

Late application

7.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

8.However, the applicant filed Form 86 only on 22 February 2023, which is more than 7 months after the Board’s Decision (made on 7 July 2022). The applicant was therefore late for more than 4 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

9.As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)   the length of the delay;

(ii)   the reason for the delay;

(iii)   the merits of the intended application; and

(iv)   any prejudice to the putative respondent and to public administration.

10.The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application. The delay was substantial, and there is simply no reason for this court to grant an extension of time for the applicant to file the Leave Application when no explanation was given. More importantly, there is no merits of the intended judicial review as discussed below.

11.Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

The applicant’s case

12.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.

13.In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed or killed by her husband Solih if she did not give him money.

Withdrawal of the Leave Application

14.Before the Leave Application was dealt with, the Director informed this court in a letter dated 11 March 2026 that the applicant had written a letter dated 10 March 2026 to withdraw the Leave Application.

15.As stated in the applicant’s said letter, she wanted to withdraw the Leave Application because she wanted to return to her home country as soon as possible. However, she did not state that it was safe for her to go back to her home country, or that her problem had been solved.

16.There is no evidence to show that the applicant made the withdrawal application other than out of her own volition. With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing of the Leave Application even though she had previously requested one.

17.However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

18.Thus, it is not right to leave the action at large. The applicant’s application to withdraw the Leave Application is therefore refused and this court will proceed to deal with the merits of the Leave Application.

Grounds for judicial review

19.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).

20.The applicant did not advance any ground for her intended judicial review in her Form 86.

21.In her supporting affirmation dated 22 February 2023, under the heading “GROUNDS FOR JUDICIAL REVIEW”, the applicant stated 6 grounds for the intended judicial review, which are summarised as follows:-

(1)   the adjudicator did not consider her claim;

(2)   the adjudicator did not accept her documents as the documents were in her mother language;

(3)   the officer refused to give her time to translate the documents because he had no time;

(4)   the translator did not help her at all and became angry if the applicant did not understand;

(5)   the interpreter asked her not to take long time for interview as he had another job; and

(6)   she asked the court to help her and save her life.

Discussion

22.First of all, the above grounds (except ground (6) which is not a ground at all) were asserted without any specificity. Many applicants in similar applications used them like a template without any regard to their own cases. The applicant is no exception. She did not state (1) how the adjudicator did not consider her claim; (2) which part(s) of her claim was not considered; (3) what documents she intended to submit were rejected as they were not translated; (4) how the interpreter or translator’s attitude had prejudiced her; and (5) what she wanted to tell the Board was not presented because of the attitude of the interpreter or translator.

23.The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.

24.Thus, the general assertions that were contained in the applicant’s affirmation cannot help her at all.

25.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).

26.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any specific ground being advanced by the applicant for the intended judicial review.

27.In assessing the applicant’s appeal/petition, the Board arranged an oral hearing on 31 May 2022. However, the applicant was absent at the hearing. The Board sent a notice dated 31 May 2022 to the applicant advising her that she should submit a written explanation of her failure to attend the hearing, together with any documentary evidence supporting her explanation within 7 days of the notice, failing which the Board would proceed to determine her appeal/petition. The applicant did not respond to the said notice. Thus, the Board proceeded to determine her appeal/petition based on all the available evidence before the Board.

28.The Board laid out its assessment of the applicant’s credibility in paragraphs 44 to 45 of the Board’s Decision.

29.In gist, the Board found that the applicant had only made bare assertions and provided no objective proof of her assertions. The applicant’s serious delay in making a non-refoulement claim, together with the number and nature of inconsistencies and implausibilities in the applicant’s evidence, all undermined the applicant’s credibility.

30.On the totality of the evidence, the Board was not convinced that the applicant overstayed in Hong Kong because of the alleged threat by her husband to kill or harm her, and her husband would or could try to locate her and harm her upon her return. The Board found that the applicant’s alleged fears were based on speculations which were far-fetched. The Board was not convinced that the applicant had suffered any mental fear, pain and sufferings as she had alleged. The Board found that the centrepiece of the applicant’s story did not stand. The Board found the applicant dishonest and unreliable, and that she was not a genuine claimant for non-refoulement protection.

31.Further, the Board found that the applicant’s husband was a non-state actor and his ill-treatment on her, if any, did not involve state acquiescence and was not for any Convention reasons. The injuries the applicant suffered in the past did not reach a minimum level of severity.

32.Moreover, the Board found from country of origin information (“COI”) that despite shortfalls, the Indonesian government had performed due diligence on its duties as well as upheld the rule of law. There was no evidence that the Indonesian authorities would fail to discharge its duties or tolerate any unlawful behaviour committed by an individual as a systemic practice. The Board did not accept that state protection would not be available if the applicant was returned to her home country.

33.The Board also found that the applicant had many options for internal relocation in Indonesia. The Board did not accept that the applicant’s husband would or could locate her all over the country. The Board was of the view that it would not be unreasonable or unduly harsh for the applicant, being 34 years old at the time of the Board’s Decision with years of work experience, to relocate to other places in Indonesia to avoid any perceived threat from her husband.

34.Thus, the Board concluded that there was not a real risk that the applicant would face torture, ill-treatment, arbitrary deprivation of life or persecution upon refoulement. Hence, the applicant failed to establish a case for non-refoulement protection in Hong Kong.

35.The finding of facts including the assessment of evidence, COI materials and risk of harm was primarily within the realm of the Board in dealing with her appeal/petition. The applicant’s alleged danger in her home country had been duly assessed by the Board. The Board was entitled to reach its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

36.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.

37.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, 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 intended judicial review has no realistic prospects of success at all, and hence the Leave Application must be dismissed.

Conclusion

38.For reasons aforesaid, the application for leave to withdraw the Leave Application is refused and the Leave Application is dismissed for being made out of time and also for lack of merits.

Dated the 13^th day of May 2026

( Gladys LEE )
for Registrar, High Court

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

Notes for the applicant: If leave has been granted, the applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent/Handed to the applicant/the applicant’s solicitors on: 13/05/2026 Applicant’s ref. no: Nil		Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 13/05/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 18998/21/10/124/I2287 Director of Immigration Putative interested party’s ref. no.: QA T/C 991/21 (Formerly RBCZ 89/21) (T3I35) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)