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

HCAL 1531/2023

[2026] HKCFI 2600

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1531 of 2023

Application for Leave to Apply for Judicial Review

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

Following:

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

Order by Deputy High Court Judge Levy:

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

Observations for the Applicant:

Introduction

1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 30 August 2023, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 29 June 2023 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 29 November 2022 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds[1]. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001531_2023_files/the_Board's_Decision.pdf

2.Notwithstanding that the Director’s Decision and the Board’s Decision are both written in Chinese, this court believes that it is expedient to render its decision in English as both the Form 86 and the supporting affirmation were prepared in the English language.

3.The basis of the applicant’s claim is that, if refouled to Indonesia, she would be harmed or killed by her deceased mother’s creditor. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 21 April 2026. The applicant was brought to court from Nei Kwu Correctional Institution on a body order.

Discussion

5.A leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision[2]. It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The Form 86 contained no such grounds at all. In her supporting affirmation, the applicant put forward 5 grounds to support the Leave Application:

(1)  The Board did not think about her life (in danger) when it dismissed her appeal;

(2)  The Board refused to accept the untranslated documents;

(3)  Her request for time to translate the documents into English was rejected;

(4)  The translator did not help her and whenever she indicated that she did not understand, the translator became angry;

(5)  The interpreter asked the applicant not to prolong the time as he had another job to attend to.

7.In light of the serious allegations the applicant had made in her supporting affirmation, this court took time to go through each of proposed grounds with the applicant at the hearing. Regarding ground (1), the applicant elaborated that the Board failed to consider the deep trauma she would suffer if she were refouled. Grounds (2) and (3) concern translation of documents. The applicant then said the grounds were not prepared by her. She gave some incomprehensible response that she was able to do the translation in her mobile phone. Grounds (4) and (5) were allegations against the interpreter. When the court asked her to elaborate on these allegations, the applicant said she never made these allegations and totally disown of the grounds she put forward. She stated that she had no knowledge of the allegations at all and they were not true. At the end, the applicant asked to be given time to stay in Hong Kong.

8.As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[4] In the present case, the Board found that since the debt was owed by the applicant’s mother, the applicant would have no liability for repayment. In any event, the applicant found that the mother’s creditor had not harmed her in the past. Thus, any past ill-treatment would have failed to meet the requisite level of severity. The Board further found that internal relocation was reasonably viable. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

9.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness.  Since the applicant had disavowed the proposed grounds of the review at the hearing, the applicant therefore has not provided any valid grounds, whether written or oral, in support of the Leave Application. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[5].

Order

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

Dated the 15^th day of May 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