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

HCAL 1659/2021

[2026] HKCFI 3152

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1659 of 2021

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 K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 29 October 2021 of the Torture Claims Appeal Board (“the Board’s Decision).

2.The applicant appeared before the Court on 13 May 2026.

The applicant

3.The applicant is a national of Indonesia.  She is an illegal immigrant.  She lodged a non-refoulement claim on the basis that, if refouled, she will be harmed or killed by the creditor of her father as he was unable to repay his loan and she is the guarantor of his loan.

4.Details of her claim are set out in the Board’s Decision.  See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001659_2021_files/the_Board's_Decision.pdf

The Director’s Decision

5.The Director considered the applicant’s claim in relation to the following risks:

a.   risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.   risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.   risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.By way of the Notice of Decision dated 26 May 2021 (“Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 30 July 2021, the Board conducted an oral hearing for her.  The applicant had given evidence and answered the Board’s questions.

8.Having considered the evidence, the Board made the findings below.

(1)   Her fear of the alleged risks is mere speculation and do not establish that she faces real risk of being harmed should she return to Indonesia. [47]

(2)   She would not face a real risk of suffering proscribed harm should she return to Indonesia in the foreseeable future.  Therefore, the reasons that support the applicant’s case for non-refoulement has not been made out. [48]

(3)   For the reasons above, all of the applicable risks for her claim failed.

9.For the above reasons, the Board dismissed her appeal and affirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 7 December 2021 for leave to apply for judicial review of the Board’s Decision.

11.In support of her application, the applicant has only attached a copy of the Board’s Decision to her affirmation.

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal.  The Court will not usurp the fact-finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.  Before me, she agreed that the Board’s Decision is correct. She had married a Hong Kong resident and applied for a visa to stay in Hong Kong.  However, before the Director approves her application, her husband has passed away.  She wants to stay here longer for the Director to consider her application.

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and 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 errors of law or procedural unfairness or irrationality in the decision of the Board.”

15.Her application for a visa is not relevant to this application.  She may continue with her application.  However, she has raised no valid ground to challenge the Board’s Decision.

16.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

17.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her 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