Sri Setyoningsih v. Torture Claims Appeal Board

HCAL 1542/2021

[2026] HKCFI 3547

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1542 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

Order by Deputy High Court Judge Michael WONG:

1.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 8 November 2021, 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 3 November 2021 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001542_2021_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 26 April 2021, which rejected the applicant’s non-refoulement claim.

The applicant’s case

3.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.

4.In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be at risk of harm or being killed by Mr Edi, a creditor, as the applicant’s husband owed him a loan that she had no money to repay.

Oral hearing

5.The applicant requested for an oral hearing of the Leave Application, and her case was heard on 11 June 2026.

6.When this court asked the applicant for the grounds of her intended judicial review, the applicant only said that she was threatened by the debt collector and she feared for her life. However, the applicant actually confirmed that she found nothing wrong with the Board’s Decision even though she was not satisfied with the outcome.

Grounds for judicial review

7.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).

8.The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 8 November 2021.

9.As aforesaid, at the oral hearing, the applicant merely repeated her fear of the debt collector and confirmed that there was nothing wrong with the Board’s Decision.

Discussion

10.First of all, the applicant’s fear arising from her inability to pay the loan had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

11.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).

12.Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

13.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 10 August 2021. The applicant was present at the hearing. Thus, the applicant did have a chance to present her case to the Board in person.

14.As can be seen from paragraphs 33 to 37 of the Board’s Decision, the Board discussed the credibility of the applicant’s claims. The Board found that the applicant had not provided any evidence to support her claim. The Board found it unconvincing that the creditor intended to kill the applicant, as he had plenty of opportunities to do so, but he did not. It was the applicant’s own volition not to report the threats to the police at higher rank or other government authorities in Indonesia when the local police had refused to take up the case. The applicant could remain in Jakarta for three months and nothing eventful happened to her.

15.In any event, the applicant’s dispute with the creditor was a private dispute only and it was between the creditor and the applicant’s husband. There was no suggestion under Indonesia law that the applicant had to be responsible for the loan. The Board found that the threats from the creditor was not as real and imminent as the applicant had suggested. The Board also considered that the applicant’s sufferings had not attained a minimum level of severity that required international protection. The creditor was a non-state actor and there was no evidence of state acquiescence in the ill-treatment of the applicant. The applicant’s fear of the creditor was not for a Convention reason.

16.Moreover, the Board found from country of origin information (“COI”) that despite the existence of corruption and the insufficiency of the Indonesian police, the Indonesian government was taking steps to combat the problems. The Board considered that reasonable state protection would be available to Indonesian citizens and the applicant.

17.In addition, the Board had also given full reasons in paragraphs 92 to 94 of the Board’s Decision as to why it found that it would not be unduly harsh for the applicant to relocate to other areas in Indonesia to avoid the perceived risks from the creditor.

18.In view of its findings, the Board did not consider that the applicant would face a real risk of any of the proscribed forms of harm should she return to Indonesia. Thus, the Board rejected the applicant’s claims for non-refoulement protection in Hong Kong.

19.The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision. The applicant’s alleged dangerous situations had been fully considered but rejected by the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

20.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.

21.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that 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

22.For reasons aforesaid, the Leave Application is dismissed.

Dated the 17^th 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

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