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

HCAL 459/2023

[2026] HKCFI 3075

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 459 of 2023

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) Martin Wong:

1.   The Applicant’s Form 86 be amended to state the TCAB Decision as the decision in respect of which relief is sought, name the TCAB as the putative respondent and name the DOI as a putative interested party; and

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

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 23 March 2023 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Director of Immigration (the “DOI”) dated “18‑08-2022”.  She named the DOI as the proposed respondent and also an interested party.

2.According to the case file, there was a decision by the Torture Claims Appeal Board (the “TCAB”) dated 18 August 2022 (the “TCAB Decision”), which affirmed a decision by the DOI dated 15 September 2021 in refusing the Applicant’s non-refoulement protection claim. 

3.I accordingly amended the Form 86 on my own motion to state the TCAB Decision as the decision in respect of which relief is sought, name the TCAB as the putative respondent and name the DOI as a putative interested party.

4.The Applicant did not request for a hearing and this application is to be dealt with on paper.

5.This application is plainly out of time and there is no application made for extension of time.  For this reason alone, this application falls to be dismissed.  That notwithstanding and insofar as necessary, I proceeded to consider the merits of the application as below.

Background

6.The Applicant is a national of Indonesia.  She seeks non-refoulement protection on the basis that if she was returned, she would be harmed or killed by her brother who wanted to sell their father’s estate, to which she opposed.  Her personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

7.In a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  This court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

8.In the Form 86 and her affirmation filed in support of this application, the Applicant did not point to any particular error of law, procedural unfairness or irrationality of the TCAB Decision.

9.Looking at the TCAB Decision, the TCAB took into consideration of the Applicant’s case and evidence [2-14], including her testimony at the hearing before it [37], after thorough analysis and assessment came to the findings and conclusions that none of her allegations was made out [17-47].

10.The TCAB with in mind the correct principles in respect of each of the four applicable grounds under the USM, further found and concluded that none was made out [54-69].

11.Further, by reference to the relevant Country of Origin Information, the TCAB found and concluded that internal relocation was in any event available to the Applicant [48-53].

12.I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

13.For the above reasons, I am not satisfied that this court should intervene by way of judicial review.  I therefore 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