Nia Daniati Bt Hamdan Usman v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1075/2022

[2026] HKCFI 2584

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1075 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) Ken To:

1.   Form 86 be amended, naming the Director of Immigration as the Putative Interested Party; and

2.   The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.By Form 86 filed on 12 October 2022 (“Form 86”), the Applicant applied for leave to apply for judicial review (“Leave Application”) against the decision of the Torture Claims Appeal Board (“Board”) dated 29 September 2022 (“Board’s Decision”)[1], dismissing the Applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 9 February 2022 (“Director’s Decision”).

2.The Applicant attended an oral hearing in person for the Leave Application on 3 March 2026.

3.I amend the Form 86 on my own motion to name the Director of Immigration as the putative interested party.

Discussion

4.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 suffices for me to state my observations after considering the Board’s Decision and the Applicant’s materials adduced.  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.

5.The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board. Although the Court will adopt an enhanced standard in scrutinizing the Board’s Decision due to the seriousness of the issue, it should not usurp the role of the Board.  The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

6.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 (HCAL 21/2015, 22/12/2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

7.The Applicant did not point to any error of law, procedural unfairness or irrationality of the Board’s Decision in the Form 86, but put forward the following grounds in her affirmation in support:-

(a)   The Board failed to conduct any inquiry on a high standard, and failed to consider the real risk of harm she faced (“Ground 1”);

(b)   The Board failed to assess her claim, in that it is a true story (“Ground 2”); and

(c)   The Board failed to consider the Country of Origin conditions, in that her life would not be protected by the state (“Ground 3”).

8.As to Ground 1, the Applicant did not explain why and how the Board failed to conduct any inquiry on a high standard.  Based on my other findings, I do not find that the Board has failed to consider and determine the Applicant’s case on the required standard.

9.As to the real risk of harm, the Applicant confirmed that other than verbally threats and kicking the fence and stall in front of her family home, the alleged lender and his underlings have never physically harmed any one of her family.  The Board is therefore entitled to find that it is far-fetched for the Applicant to suggest that the lender would locate, kill or seriously harm her [71-75].

10.As to Ground 2, the Board provided detailed reasons on why it was found that the Applicant’s case is both illogical and inconsistent [51-64].

11.As to Ground 3, the Board did not have to make any finding as to whether the State was able to protect her.  The Board rejected the Applicant’s factual case.  The Board found that the Applicant’s fear of being ill-treated is far-fetched.  The Board also found that even if the Applicant’s case is established, the Applicant would be able to relocate herself by finding employment locally or in another jurisdiction [78-83].

12.The Board’s Decision took into account the evidence available [1-14, 33-49], properly considered Country of Origin information [14], applied the correct legal test [16-32] and found that the Applicant’s allegations were insufficient to make out any of the applicable grounds [67-83].  The Board found that the Applicant failed to show that she is entitled to non-refoulement protection in Hong Kong. 

13.Having considered the Board’s Decision with rigorous examination and anxious scrutiny, I do not find any error of law, procedural unfairness or irrationality. The Board’s Decision was comprehensive with adequate reasons provided.  There is also nothing to indicate that the Board failed to take into account any relevant matters, or otherwise reached a decision that it was not entitled to make.  Accordingly, there is no reasonably arguable ground for judicial review with any realistic prospect of success.

Conclusion

14.By reason of the above, the Leave Application is dismissed.

Dated the 20^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