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

HCAL 68/2024

[2026] HKCFI 3694

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 68 of 2024

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. 

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 19 December 2023 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. 

2.The applicant appeared before the Court on 15 June 2026. 

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party. 

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 her father because she was unable to repay his debts for him and she is a lesbian, which her father takes it as a disgrace to the family. 

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/2024/HCAL000068_2024_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 4 August 2023 (“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 20 October 2023, 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)   The Board accepted her evidence of her father’s loan and her failure to repay for him.  [77] The Board further accepted that the creditor had threatened her father.  [81] However, the Board found that there was no evidence that she would face a real risk of proscribed harm if she returns to Indonesia. [84]

(2)   The Board was not satisfied that there was evidence that she would face a real risk of harm from her father, or from anyone else in Indonesia for reasons of her claimed sexuality. [87]

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 5 January 2024 for leave to apply for judicial review of the Board’s Decision. 

12.In her supporting affirmation, the applicant did not raise any specific ground to challenge the Board’s Decision. She has submitted her marriage certificate to show that she had married in Hong Kong. 

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 that she did not know if the Board’s Decision was wrong.  However, she said that she had married and was waiting for a visa from the Director.  

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.  She may continue with her application for a vias from the Director.  But this is irrelevant to her application in these proceedings. 

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.  

Dated the 8^th day of July 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