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

HCAL 346/2022

[2026] HKCFI 3525

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 346 of 2022

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 K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This case should be considered together with HCAL 1518 of 2025 because the applicant in this action is the mother of the applicant, a minor of two and a half years old son in the other action.

2.The applicant applies for leave to apply for judicial review of the Decision dated 27 April 2022 of the Torture Claims Appeal Board (“the Board’s Decision), which dismissed her appeal against the Director’s Decision refusing her non‑refoulement claim as mentioned below.

3.The applicant appeared before the Court on 3 June 2026.

The applicant

4.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 husband who had borrowed money from the lender, but she had used the property in her name as the security for the loans. Her husband was unable to repay his loans. He told the applicant that the creditor will kill her if she returns to Indonesia.   

5.Details of her claim are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000346_2022_files/the_Board's_Decision.pdf

The Director’s Decision

6.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”).

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

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 8 October 2021, the Board conducted an oral hearing for her. The applicant had given evidence and answered the Board’s questions.

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

(1)  There were a number of discrepancies between the applicant’s evidence in her statement to the Director and her evidence at the hearing. [31] The discrepancies are glaring and indicative that she had exaggerated the risks and danger from the creditor. [35]

(2)  Even if her evidence were accepted, her claim does not sustain for the applicable risks. [[38], [43], [47] & [49]

(3)  Besides, state protection is available if she returns to Indonesia; [52] and internal relocation is viable. [54]

10.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

11.The applicant has filed Form 86 dated 16 May 2022 for leave to apply for judicial review of the Board’s Decision.

12.In support of her application, the applicant has not raised any specific ground to challenge the Board’s Decision. She has attached a copy of the Board’s Decision to her affirmation.

DISCUSSION

13.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).

14.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said the Board was not wrong. However, she has liver problem herself.

15.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.”

16.The applicant has raised no valid ground to challenge the Board’s Decision.

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

DISPOSITION

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

19.The applicant has applied for non-refoulement for her son of two and a half years old, relying on the facts of her case. This is the action HCAL 1518 of 2025, which will be dealt with in a separate action.

Dated the 24^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

Form CALL-1