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

HCAL 197/2023

[2026] HKCFI 3014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 197 of 2023

Application for Leave to Apply for Judicial Review

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

Following:

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

Order by Deputy High Court Judge (Non-refoulement Claims) Connie Lee:

1.  Form 86 be amended, naming the Torture Claims Appeal Board/Non-refoulement Claims Petitions Office as the Putative Respondent and adding Director of Immigration as the Putative Interested Party.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By Form 86 filed on 13 February 2023, the Applicant seeks leave to apply for judicial review (the “Leave Application”) of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board” and the “Board’s Decision”). By that decision, the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration dated 15 November 2021 (the “Director’s Decision”), which had rejected her non-refoulement claims on all applicable grounds under the Unified Screening Mechanism (“USM”).

2.Upon perusal of the Board’s Decision, it was in fact made on 27 November 2023 after a hearing personally attended by the Applicant on 24 November 2022. Hence, when the Leave Application was filed on 13 February 2023, it was premature as the Board’s Decision was not yet available at the time.

3.When asked for an explanation at the oral hearing on 13 May 2026, the Applicant simply said she did not know.

4.As the Applicant had already appealed the Director’s Decision, the Board’s Decision effectively supersedes the Director’s Decision.[1] Hence, the Director’s Decision is not a decision which is susceptible to judicial review either.

5.The Applicant’s background, the basis of her claim and the arguments she advanced had been set out in detail in the Board’s Decision. It is not necessary for me to repeat the same here. Unless otherwise specified, the abbreviations and descriptions used in the Board’s Decision, the hyperlink[2] to which is included below, are also adopted herein.

Discussion

6.Judicial review does not operate as a further avenue of appeal. The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision. The primary decision makers are the Director of Immigration (the “Director”) and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are error of laws, procedural unfairness or irrationality in the decision of the Board. [3]

7.In seeking leave for judicial review, the Applicant ought to have clearly and precisely identified the grounds relied upon in the Form 86 and in her supporting affirmation. [4] The Applicant’s grounds can be summarized as follows: -

(1)  “Adjudicator did not consider my claim. Adjudicator directly dismissed. He did not even take time or did not think about my life (“Ground 1”);”

(2)  “I had some documents but all in my mother language. I submitted all but Adjudicator did not accept because he could not understand.” (“Ground 2”)

(3)  “I request him to give me some time to translate in English of my all documents and I too took some preparation but my officer had no time. (“Ground 3”)

(4)  “Translator did not help me at all. If I did not understand he became angry. (“Ground 4”)

(5)  “Interpreter asked me to not take long time for interview as he had another job. (“Ground 5”)

(6)  “Please help me and safe my life.” (“Ground 6”)

8.As the Leave Application precedes the date of the Board’s Decision, it would appear that the aforesaid grounds are in fact directed against the Director’s Decision which is not susceptible to judicial review.

9.In any event, I have scrutinized the Board’s Decision carefully and come to the view that none of the aforesaid grounds (if directed against the Board’s Decision) can be established or considered as valid or effective public law grounds.

10.First, most if not all of the grounds merely consist of generic, vague and/or unparticularized assertions without reference to any underlying facts or matters establishing why, how and where each of those complaints arise in relation to the Board’s Decision. General assertions without particulars are not effective grounds and cannot assist the Applicant.[5]

11.Ground 2 to Ground 5 are obviously untrue and must be rejected: -

(1)  The Applicant attended the screening interview and she was represented by a lawyer instructed by the DLS. She was able to clarify the details of her non-refoulement claim and provided further supporting information in response to questions from an immigration officer acting on behalf of the Director of Immigration (see: Paragraphs 8 and 28 of the Board’s Decision).

(2)  The Applicant attended the oral hearing before the Board with the assistance of an interpreter. Both of them confirmed to the Board that they had no difficulties understanding each other. The Applicant also confirmed under oath that the information in her claim documents was complete, true and correct. She also informed the Board that she did not wish to testify and/or to provide any further evidence to the Board (see: Paragraphs 68 and 69 of the Board’s Decision).

12.Second, the Board was acutely aware of the Applicant’s claim that if she was to be refouled to Indonesia, she would be at risk of the proscribed harm there from the loan shark, on account of her failure to repay a loan her husband had obtained from the loan shark. The Board duly considered the evidence and submissions made by the parties including the COI materials before reaching the findings that (1) the risk the Applicant might suffer serious harm at the hands of the loan shark was low and fell far short of the standard required to warrant international protection (see: Paragraphs 89 and 103 of the Board’s Decision); (2) there would be adequate state protection and (3) internal relocation would be a viable option (see: Paragraphs 90 to 103 of the Board’s Decision).

13.It follows that Ground 1 has no merit and must be rejected. The Board did properly and duly consider the Applicant’s claim with adequate reasons provided. It was simply entitled to come to the conclusions it did and reject the Applicant’s claim.

14.Third, Ground 6 has no substance. Likewise, the Applicant’s written submissions in her Form 86 pointing to “life threats” and “enemy” in her home country and the police taking money from such “enemy” and staying silent, do not add any substance to the Leave Application. In particular, I note that other than her claims related to her fear of harm from the loan shark, she had raised no other basis for non-refoulement for the consideration of Director and the Board (see: Paragraph 104 of the Board’s Decision).

15.Fourth, in all circumstances, I can discern no error of law or procedural unfairness or irrationality on the part of the Board in the assessment and rejection of the Applicant’s claim.

Conclusion

16.Accordingly, I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success.[6]  I dismiss the Application.

Dated the 3^rd day of June 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