Case Document

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HCAL 736/2023

[2026] HKCFI 4276

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 736 OF 2023

BETWEEN
	Santi Gustami	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

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 16 May 2023, 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 8 March 2023 (“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/2023/HCAL000736_2023_files/the_Board's_Decision.pdf

2.The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 30 November 2021 and confirmed the same, 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 harmed or killed by her husband.

Oral hearing

5.The applicant requested for an oral hearing of the Leave Application, and her case was heard on 16 July 2026.

6.The applicant confirmed that she would rely on the grounds stated in her supporting affirmation dated 16 May 2023 for her intended judicial review. When this court asked the applicant to elaborate on the said grounds, she first replied that she forgot the contents of her affirmation as it had been a long time. After the affirmation was read to the applicant by the interpreter, the applicant only added that she could not go back to her country and her life was in danger.

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 identify any ground for the intended judicial review in Form 86.

9.In her supporting affirmation dated 16 May 2023, the applicant advanced 6 grounds under the heading “GROUNDS FOR JUDICIAL REVIEW”. The grounds are summarised as follows:-

(1)  The adjudicator did not consider her claim;

(2)  The adjudicator did not accept her documents as the documents were in her mother language;

(3)  The officer refused to give her time to translate the documents because he had no time;

(4)  The translator did not help her at all and became angry if the applicant did not understand;

(5)  The interpreter asked her not to take long time for interview as he had another job; and

(6)  She asked the court to help her and save her life.

10.What the applicant said at the oral hearing before this court, namely that she could not go back to her country and her life was in danger, were not grounds for judicial review at all.

Discussion

11.First of all, the applicant’s danger in her home country 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.

12.As to the matters that were stated as “GROUNDS FOR JUDICIAL REVIEW” in her supporting affirmation, all the grounds (except ground (6) which is not a ground at all) were asserted without any specificity. Many applicants in similar applications used them like a template without any regard to their own cases. The applicant is no exception.

13.She did not state: (1) how the adjudicator did not consider her claim; (2) which part(s) of her claim was not considered; (3) what documents she intended to submit were rejected as they were not translated; (4) how the interpreter or translator’s attitude had prejudiced her; and (5) what she wanted to tell the Board was not presented because of the attitude of the interpreter or translator.

14.The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.

15.Thus, the general assertions that were contained in the applicant’s affirmation cannot help her at all.

16.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).

17.Thus, the applicant cannot ask this court to re-assess her non-refoulement claim. Nevertheless, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

18.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 26 October 2022. Thus, the applicant was given the opportunity to present her case to the Board in person.

19.As can be seen from the Board’s Decision, the Board had given a detailed analysis of the applicant’s claims and its reasoning in rejecting the applicant’s claim for non-refoulement protection.

20.The Board had laid out its consideration of the applicant’s claims and evidence in paragraphs 20 to 21 of the Board’s Decision, and it is not necessary to repeat the same here.

21.In gist, the Board was willing to accept the applicant’s central claim, namely that her husband was angry and threatened to kill her when he found out that she had a boyfriend in Hong Kong. However, given the absence of any past history of violence and the absence of any particular factors indicating that his threat to kill the applicant was not an empty threat made in the heat of anger but represented a serious intention, the Board was not satisfied that the applicant’s husband did have any such intention.

22.The Board was not satisfied that there were substantial grounds for believing that there was a real risk that the applicant’s husband would kill her or harm her in any way should she return to Indonesia, even having regard to the fact that the applicant was pregnant, presumably by her boyfriend, at the time of the Board’s assessment of her claim. The Board regarded the risk posed to the applicant by her husband as speculative and remote, and based on conjecture rather than objective reality.

23.Thus, the Board did not find that the applicant had a well-founded fear of persecution, or that she was at risk of any kind of harm from her husband. Moreover, the applicant’s feared harm did not fall within the definition of torture.

24.As can be seen in paragraph 17 of the Board’ Decision, the Board had discussed the availability of state protection and the viability of internal relocation with the applicant at the Board’s hearing. Nevertheless, given the findings and conclusion of the Board that the applicant was not at a real risk of any of the proscribed forms of harm, the Board did not explicitly make findings on the availability of state protection.

25.As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755).

26.As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm from her husband, it is not necessary for the Board to consider internal relocation.

27.The finding of facts, including the assessment of evidence and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

28.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 error 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.

29.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, 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

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

Dated the 29^th day of July 2026

(Gladys LEE)
for Registrar, High Court

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

Notes for the applicant: If leave has been granted, the applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent/Handed to the applicant/the applicant’s solicitors on: 29/07/2026 Applicant’s ref. no: Nil		Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 29/07/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 19443 Director of Immigration Putative interested party’s ref. no.: QA T/C 1848/21 (formerly RBCZ/371/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)