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

HCAL 1136/2022

[2026] HKCFI 2349

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1136 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:

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 24 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 11 August 2022 (“Board’s Decision”)[1], dismissing the Applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 26 January 2022 (“Director’s Decision”).

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

Discussion

3.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.

4.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.

5.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.

6.The Applicant did not point to any error of law, procedural unfairness or irrationality of the Board’s Decision in the Form 86.  But as far as I can discern, she provided the following grounds in her two affirmations dated 24 October 2022 and 9 February 2026 respectively:-

(a)   The Director’s Decision is unreasonable and unfair (“Ground 1”);

(b)   The Director failed to consider or give proper weight to the role of the state (“Ground 2”);

(c)   The Director placed too much reliance on the Country of Origin Information, but failed to consider or to give proper weight to deficiency of protection provided by police in the Applicant’s home country (“Ground 3”);

(d)   The Director had demonstrated an unfair attitude by failing to take into account matters contained in the above ground, or by failing to give sufficient weight to the same (“Ground 4”);

(e)   The Director made such findings which ought to cause him to allow the appeal.  By dismissing the appeal on such findings, the Director acted irrationally (“Ground 5”);

(f)   The Director’s dismissal of the appeal was unreasonable, irrational, or was a result of procedural errors or unfairness (“Ground 6”); and

(g)   The Director did not investigate into the Applicant’s claims properly by relying on unofficial information obtained from the Internet, which rendered the Director’s Decision unfair (“Ground 7”).

7.As to Grounds 1-6, they are no more than bare assertions.  No particulars have been provided in explaining how the Director had acted unreasonably, unfairly, erroneously, irrationally, or dismissed the appeal as a result of procedural errors or unfairness, or by failing to put due weight on the relevant factors.  I have thoroughly considered the Board’s Decision, and am unable to detect any of the above.

8.As to Ground 7, the Board had considered the COI concerning Indonesia as adduced by the parties [15].  The Board also considered the online official Country Reports on Human Rights Practices as published by the US Department of State, and online newspaper article by The Jakarta Post [25].  I do not find these sources to be ‘unofficial’ or otherwise unreliable.  Bearing in mind that the Applicant also had the opportunity to adduce her own evidence, I do not find that the Board’s Decision may be said to be unfair by having relied on such materials. 

9.The Board’s Decision took into account the evidence available [7-13], properly considered Country of Origin information [15], applied the correct legal test [16-23, 26-31, 36‑39, 41-48, 54-57, 60-61] and found that the Applicant’s allegations were insufficient to make out any of the applicable grounds [24-25, 32-35, 49-53, 58-59, 62].  The Board found that the Applicant failed to show that she is entitled to non-refoulement protection in Hong Kong. 

10.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

11.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