Citra Pernika v. Torture Claims Appeal Board
Read the full judgment text of HCAL 566/2026 on BabelCite. This High Court CFI judgment was delivered on 20 May 2026.
1. By way of Form 86 dated 6 March 2026 and filed on 13 March 2026, 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 28 December 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
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HCAL 566/2026 [2026] HKCFI 2907 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 566 OF 2026
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated 6 March 2026 and filed on 13 March 2026, 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 28 December 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 16 March 2023 (the Director’s Decision), which rejected the applicant’s non-refoulement claim. Amendments 3.In Form 86, the applicant stated her name as “CITRA-PERNIKA”, but her name as appeared in her Recognizance is just “CITRA PERNIKA” without the hyphen in between. 4.The applicant also named “TORTURE CLAIMS APPEAL BOARD / NON-REFOULMENT CLAIMS PETITION OFFICE TRANSPORT TRIBUNAL” as the putative respondent, when only the Board should be named as the putative respondent. 5.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent. 6.The Transport Tribunal is simply irrelevant to the Board’s Decision. Hence, it should not be named as a putative respondent at all. 7.Thus, this court makes an order on its own motion to amend the applicant’s name to “Citra Pernika” and the name of the putative respondent to “Torture Claims Appeal Board”. Late application 8.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had 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. 9.However, the applicant filed her Form 86 on 13 March 2026, which was more than 2 years and 2 months after the Board’s Decision (made on 28 December 2023). The applicant was hence late for more than 23 months in making the Leave Application. 10.The applicant provided the reason for her delay in Form 86. In gist, the applicant was given to understand that the Board’s Decision was final in her claim for non-refoulement protection in Hong Kong. She was not aware that she could resort to judicial review proceedings to see whether the Board’s Decision was flawed with error of law, procedural impropriety and/or irrationality until she learnt of this from an inmate during her detention in the Castle Peak Bay Immigration Centre on 24 December 2025. 11.The applicant was fully aware that the Leave Application was filed out of time, and she requested that her application for extension of time to be considered following the well- established principles laid down in AW v Director of Immigration [2016] 2 HKC 393, which was endorsed in Tse Wai Lok Walter and another v The Convocation of the Chinese University of Hong Kong HCAL 1971/2023. 12.Indeed, this court has to and will consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration, supra, which are:
13.In the present case, the delay of more than 23 months is very substantial. The reason for the delay is not satisfactory, as ignorance of the court’s procedures is generally not an excuse, which is also acknowledged by the applicant. 14.Nevertheless, the applicant relies on the merits of her case to substantiate her application for extension of time, as she contends that there were error of law, procedural impropriety and irrationality in the Board’s Decision as identified by her in her supporting affirmation dated 6 March 2026. 15.Contrary to the applicant’s contention, this court is of the view that there is no merit of the Leave Application as discussed below. Hence, there is nothing to substantiate the applicant’s application for extension of time. 16.Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, and the application for extension of time is refused. As aforesaid, this court will discuss the merits of the Leave Application below. The applicant’s case 17.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. 18.In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harassed by her creditor Rika due to her inability to repay a loan of 50 million Indonesian Rupiah borrowed by the applicant through her friend Ningsih in November 2016. The applicant used her Tangerang house’s house certificate as a collateral. 19.The applicant claimed that she made monthly remittance to Rika until June 2022. In July 2022, Rika called the applicant and asked about the overdue payment. Rika threatened to tell the applicant’s in-laws about the loan and to take over her house. 20.The applicant did not want to return to Indonesia. She feared that her in-laws might have come to know about the loan, and would therefore expel her from the family. Disposal on paper 21.The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper. Grounds for judicial review 22.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). 23.In Form 86, the applicant stated the grounds on which relief is sought as “(i) Error of Law; (ii) Procedural Unfairness; and (iii) Irrationality”. The applicant did not elaborate on any of the above grounds in Form 86. 24.In her supporting affirmation, the applicant laid out four grounds of judicial review with headings as follows:-
25.Each of the grounds will be discussed in the ensuing paragraphs. Discussion 26.First of all, all the 3 grounds that were listed in the applicant’s Form 86 were very general. They merely contained general allegations, namely “Error of law”, “Procedural unfairness” and “Irrationality”, without any particulars or any regard to her own situations. 27.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”. Thus, such general allegations cannot help the applicant at all. 28.This court will now deal with the four grounds that were contained in the applicant’s supporting affirmation. 29.In the first ground with the heading “Error of law, Procedural Impropriety, & Irrationality 1”, the applicant alleged that the Board had committed an error of law because it was legally obliged to consider “all issues of facts” or the “evidence in full”, but it had failed to do so. The applicant’s argument is that in paragraph 9 of the Board’s Decision, the Board mentioned that “I do not propose to rehearse the evidence in full”, and it means that the Board did not go through “all issues of facts” or the “evidence in full”. 30.The applicant’s argument is based on the interpretation of the word “rehearse”. According to the applicant, and based on the online version of Oxford English Dictionary, the applicant contends that the word “rehearse” means “go through”. Hence, when the Board said that it did not propose to rehearse the evidence in full, it means that the Board did not “go through” the evidence in full. 31.This contention is clearly misconceived. The word “rehearse” has multiple meanings. When this word is used to mean “go through”, it is usually used in the context of going through or practicing a play, piece of music, ceremony, etc, in preparation for public or actual performance. In fact, the word “rehearse” also means “describe at length” according to Shorter Oxford English Dictionary, 6th ed. 32.In the context of the Board’s Decision, it is clear that the Board used the word “rehearse” to mean “describe at length”. It is clear because what follows the sentence “I do not propose to rehearse the evidence in full” is the sentence “The Appellant’s case can be found in her Answer to Q35 of the NCF and Grounds of Appeal, which was elaborated and clarified in the Interview and the Hearing.” It shows that the Board found it unnecessary to describe the evidence at length because the applicant’s case could be found in the applicant’s Answer to Q35 and Grounds of Appeal, and it was elaborated and clarified in the Interview and the Hearing. 33.Moreover, the Board summarised the applicant’s case in paragraph 10 of the Board’s Decision. If the Board had not gone through the evidence in full, as contended by the applicant, it would not be able to give the summary in paragraph 10 of the Board’s Decision, which contained 18 sub-paragraphs and gave a clear account of the applicant’s case. 34.Thus, there is absolutely no basis for the applicant to contend that the Board had failed to discharge its legal obligation in not going through “all issues of facts” or the “evidence in full”. 35.The applicant then argued that the Board was also required to ascertain the truthfulness of “all issues of facts” or the “evidence in full” by clarifying the matter if there was an ambiguity and coming up with a correct decision. If such ambiguity could not be clarified, the applicant contends that less weight, or even no weight, was to be attached to that piece of issue or evidence. In this regard, the applicant alleged that the Board had failed to clarify two matters, namely: (1) whether the applicant had ceased contact with her Indonesian counterparts in June 2020 or after 2 August 2022; and (2) whether the applicant was arrested by the police or by the Immigration Department. 36.The applicant argued that the Board’s failure to clarify the first issue, ie whether the applicant had ceased contact with her Indonesian counterparts in June 2020 or after 2 August 2022, was highly relevant. The applicant asserted that as she changed her phone number in June 2020 and thus ceased contact with her Indonesian counterparts, she would have never known what action(s) Rika had taken, if any, after June 2020, the effect of which was that the Board was only able to assess her case within the time frame up to June 2020. 37.As to the second matter, namely, whether the applicant was arrested by the police or by the Immigration Department, the applicant admitted herself that the issue had nothing to do with the process of assessment and thus the outcome of her case. Nevertheless, the applicant used it as an example to show that the Board had failed to fully assessed “all issues of facts” or the “evidence in full”. 38.This court does not agree with the applicant’s contention that the Board had to clarify and decide on every single issue of facts or every single piece of evidence raised by the applicant. The Board was only required to determine those material facts and evidence that were central to the applicant’s non-refoulement claim. 39.What the Board stated in paragraph 10 (xiii) of the Board’s Decision was just a factual statement of what the applicant alleged. The Board was clearly aware of the fact that the applicant had changed her phone number after her last contact with her family in June 2020. In fact, it did not conflict with the statement that the applicant had no contact with Rika and/or her family since her arrest on 2 August 2022. 40.In any event, whether the applicant had lost contact with her Indonesian counterparts in June 2020 or after 2 August 2022 was not the material fact that would have affected the outcome of her non-refoulement claim. 41.As the applicant had correctly conceded, the issue of whether she was arrested by the police or by the Immigration Department had nothing to do with the process of assessment and thus the outcome of her case. 42.Thus, the first ground cannot assist the applicant in challenging the Board’s Decision. 43.In the second ground, ie Irrationality 2, the applicant contends that it was irrational for the Board to conclude that Rika had not taken over her house because there was no such information. The applicant argued that the issue was highly relevant because if her house was taken by Rika, her debt owed to Rika would be cleared or lowered to a certain extent that, if it was the latter, having her harmed or even killed was highly disproportionate to the debt involved and the risk of being caught if Rika did so. 44.The applicant’s contention in this ground is totally devoid of merit. As summarised by the Board in paragraph 10(xv) of the Board’s Decision, it was the applicant’s own case that as far as she knew, Rika had not taken over her house. Thus, based on the applicant’s evidence, the Board could only assess her case on the basis that her house had not been taken over by Rika. If the Board had assessed her case on the basis that the house was taken over by Rika, that would in fact be contradictory to the applicant’s evidence. 45.Moreover, as the applicant had pointed out herself, her risk from Rika would have been negated or at least substantially lowered if Rika had taken over her house. Thus, if the Board had made such a finding, the finding could only weaken and not enhance her case any further. There was nothing irrational for the Board to give the benefit of the doubt to the applicant, even on the assumption that there was such a doubt. 46.It is therefore this court’s view that there was no irrationality in the Board’s Decision as alleged by the applicant in the second ground. 47.In the third ground, the applicant alleged that it was irrational for the Board to conclude that her “assertion” that she would be harmed or killed by Rika was not well-founded, based on the facts that she had been able to stay with an employment agency elsewhere in Indonesia, to come to Hong Kong for employment even if Rika had knowledge of the matter and to leave Indonesia without difficulties. 48.In fact, the applicant only quoted some of the Board’s findings in relation to her case selectively. The Board did not dismiss her claim simply based on the findings that were quoted. 49.As can be seen from the Board’s Decision, the applicant’s non-refoulement claim was assessed on all the available grounds including Torture Risk[1], BOR 2 Risk[2], BOR 3 Risk[3] and Persecution Risk[4] under the USM. 50.In the applicant’s case, the applicant had never met Rika in person and had never been physically harmed by Rika. The applicant’s evidence was that Rika had issued threats to her verbally, and the contents of the threat only included: (1) telling the applicant’s in-laws about the loan, which, at the highest, would cause the applicant to be expelled from the family; and (2) taking over the applicant’s house which was used as a collateral when the loan was taken out. 51.The Board’s finding was that these ill-treatments did not attain a minimum level of severity required for international protection, and such a finding was clearly justified. 52.The Board was also clearly correct in finding that the applicant’s conflict with Rika arose only from the loan, which was a private dispute that did not involve the state of Indonesia. Any ill-treatment that was or might be inflicted upon the applicant was not on account of race, religion, nationality, membership of a particular social group or political opinion. 53.Hence, the applicant’s claim did not satisfy the requirements of any of the applicable grounds under the USM. In fact, the applicant’s case did not involve any BOR 2 Risk at all, as it was the applicant’s case that Rika had not threatened to kill her. 54.Thus, there was nothing irrational for the Board to conclude that the applicant’s “assertion” that she would be harmed or killed by Rika was not well-founded. 55.As to the last ground, ie Irrationality 4, the applicant challenged the Board’s finding on the availability of state protection to her. The applicant claimed that the Board’s finding on the country of origin information (“COI”), which showed that the police was corrupted, did not support its finding that state protection was available to the applicant. Hence, the Board’s finding was irrational. 56.The applicant also asserted that her own experience and experiences about corruption committed by the Indonesian authorities, including the police, were capable of showing inadequate state protection offered by the Indonesian government. The applicant hence believed that the Board’s finding that her view that she would not be helped if she had gone to the police in Indonesia “remained her own belief with no good supporting” was irrational. 57.However, it is well settled that the standard of state protection required is one of a practical standard, taking into account the state’s duty to establish and to operate a system of protection against persecution of its own nationals. It is not required that the state should provide protection that would eliminate all risks and amount to guarantee of protection (see Horvath v Secretary of State for the Home Department[2001] 1 AC 489). 58.The Board was cognizant that corruption did exist in Indonesia and in the Indonesian police force. However, the Board also considered COI which recorded state efforts in tackling the issue of corruption, and that there were news reporting high level officials being arrested and/or imprisoned for corruption, including government minister and police generals. The Board was of the view that these indicated Indonesian state efforts in curbing corruption. The applicant had in fact never tried to seek help from the Indonesian authorities, and hence there was no basis for the applicant to allege that she would not get any state protection. 59.Thus, this court finds nothing wrong with the Board’s conclusion that the applicant could have recourse to the authorities and there was adequate state protection offered to her. In other words, there was no irrationality in the Board’s Decision as alleged by the applicant. 60.In the circumstances, nothing that was contained in the applicant’s Form 86 or her affirmation dated 13 March 2026 can constitute a valid ground in challenging the Board’s Decision. 61.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). 62.Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid. 63.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 8 August 2023. The applicant was present and was thus given the chance to present her case to the Board in person. If indeed there were issues that required clarification, the applicant should have taken the opportunity to clarify such issues at the Board’s hearing, but she did not do so. 64.As aforesaid, the Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds, not merely because the Board found that the applicant had been able to stay with an employment agency elsewhere in Indonesia, to come to Hong Kong for employment even if Rika had knowledge of the matter, and to leave Indonesia without difficulties. 65.The Board had given its reasons to conclude that the applicant’s risk upon refoulement did not attain a minimum level of severity. This finding cannot be flawed, as the threats only involved: (1) Rika telling the applicant’s in-laws about the loan, which, at its highest, would cause the applicant to be expelled from the family; and (2) Rika taking over the applicant’s house which was used as a collateral when the loan was taken out. 66.The applicant’s risk arose only from her inability to repay the loan obtained from Rika. There was no evidence of any state acquiescence in Rika’s ill-treatment on the applicant. The applicant’s fear of returning to Indonesia was not for a Convention reason. 67.As aforesaid, a state is not required to provide a complete guarantee of protection. When a sufficient level of protection could be shown, then the applicant could be returned. There was nothing irrational for the Board to conclude that state protection would be available to the applicant if she resorted to it. 68.The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision. 69.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. 70.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 applicant has failed to establish such a claim and hence leave must be refused. Conclusion 71.For reasons aforesaid, the applicant’s application for extension of time to apply for leave to apply for judicial review is refused. The Leave Application is dismissed for being made out of time and also for devoid of merits. Dated the 20th 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 [1] Risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115. [2] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383. [3] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383. [4] Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to Status of Refugees. | ||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment