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

HCAL 380/2023

[2026] HKCFI 4357

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 380 of 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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

Order by Deputy High Court Judge (Non-refoulement Claims) Isaac Chan:

1.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.By a Form 86 filed on 13 March 2023 (“Form 86”), the applicant, a national of Indonesia, applied for leave to apply for judicial review against the decision of the Torture Claim Appeal Board / the Non-refoulement Claims Petition Office (“Board”) dated 21 February 2023 (“Board’s Decision”) [1] confirming the decision of the Director of Immigration (“Director”) dated 2 December 2021 and rejecting the applicant’s non-refoulement claim.

2.I refer to the Board’s Decision for the background of the applicant, the basis of the claim, the evidence and the argument the applicant has relied upon, which will not be repeated herein.

3.The Court’s role in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Given the seriousness of the issue involved in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decisions of the Board. However, the Court will not intervene unless there are errors of law, procedural unfairness or irrationality in those decisions: see Nupur Mst v Director of Immigration [2018] HKCA 524, at paragraph 14.

4.General assertions without particulars cannot be effective grounds to support a judicial review: see Re Fabio Arlyn Timogan [2020] HKCA 971, at paragraph 23.

5.The present application for leave is meant to be a filtering process, and I am not expected to give elaborated reasons for my decision: see Re Zunariyah [2018] HKCA 14, at paragraph 23. I will therefore provide brief reasons for my decision as follows.

Discussion

6.The applicant has submitted several grounds for the intended application for judicial review:

6.1  The adjudicator did not consider her claim, directly dismissed her claim, did not take time or think about the applicant’s life. (“1^st Intended Ground”)

6.2  The adjudicator refused to accept certain documents in the applicant’s mother language because she could not understand and also refused to allow the applicant time to translate those documents to prepare. (“2^nd Intended Ground”)

6.3  The translator did not help the applicant at all. When the applicant did not understand, the interpreter became angry. The interpreter also asked the applicant not to take long time for interviews as he had another job. (“3^rd Intended Ground”)

7.By a written submissions exhibited in her affirmation dated 2 June 2025, the applicant argued the following:

7.1  Her claim was not determined fairly by the Director and by the Board.

7.2  She could not understand how the case was determined and therefore not easy to appeal against the decision. There should have been a proper and fair mechanism that allows unrepresented litigants to understand more about their claim.

7.3  She was never provided with proper legal and language assistance. The determination of her appeal has been never read to her in her own language. Such failure in providing proper assistance is procedurally unfair.

7.4  The Board was in breach of procedural fairness in dealing with the applicant’s appeal.

7.5  The Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that it did not satisfy the requirements.

7.6  The Board’s Decision to refuse her appeal was unreasonable or irrational in the public law sense or are a result of the procedural errors of unfairness.

7.7  The Board has failed to meet the greater care and duty owed to self-represented claimants.

7.8  The discriminatory act of authorities towards non-refoulement claimants merely on the basis of quick disposal of non-refoulement cases is unacceptable and is detrimental to the spirit of the judicial system.

8.At the hearing on 7 May 2026, the applicant wished to add documents in relation to her new marriage in Hong Kong and her application for a dependent visa to remain in Hong Kong to support the present application. Such documents were clearly irrelevant. Further, in response to my queries in relation to the intended grounds of judicial review as set out above, the applicant confirmed that she did not have any further submissions or information to supplement the documents filed in support of the application under the Form 86.

9.I have considered the three intended grounds as well as the written submissions. None of them are arguable grounds for the intended judicial review.

10.The 1^st Intended Ground is a general assertion that the Board did not consider the applicant’s non-refoulement claim and dismiss her claim directly. Similarly, the applicant in her submissions complained that the Board had unlawfully fettered its discretion. However, the applicant has provided no particulars of such complaints. In any event, the Board’s Decision contains a detailed analysis of all aspects of the applicant’s non-refoulement claim. The contention that the Board did not consider the claim or has unlawfully fettered its discretion flies in the face of the Board’s Decision and has no merits whatsoever.

11.The 2^nd and 3^rd Intended Grounds as well as most of the submissions concern the procedural fairness in the process of her non-refoulement claim. The Board’s Decision has set out the procedural history of the applicant’s non-refoulement claim, including the details of the hearing before the Board on 20 September 2022. According to paragraph 44 of the Board’s Decision, the applicant was assisted by an interpreter at the appeal hearing. The procedure was explained to the applicant, who was specifically told that she could supplement or amend information set out in her non-refoulement claim form and the interview with the Immigration Department. The applicant confirmed the truth and correctness of all the evidence contained in hearing bundle. The applicant further stated that she had nothing to add and chose not to give oral evidence.

12.Such summary of the applicant’s conduct at the appeal hearing was directly contradictory to the 2^nd to 3^rd Intended Grounds that the Board rejected her request to submit further documents and to prepare for translations, as well as the interpreter’s lack of helpful assistance. As stated above, the applicant could not provide any further information to supplement to any of her grounds, which are without particulars.

13.I have also considered the submissions in relation to the lack of legal and language assistance, the Board’s failure to meet the greater duty of care for unrepresented litigants, and the criticism that the authorities simply want to dispose of non-refoulement claims quickly. None of them are particularised, and none of them have any basis. As the Court of Appeal has repeatedly held, the high standard of fairness requires by law does not mean that legal or interpretation service has to be made available at any time the applicant desires: Re Sanjaya Kumar Magar [2022] HKCA 299 at paragraph 23, also Re Tariq Farhan [2018] HKCA 17 at paragraph 11.

14.The applicant was assisted by the Duty Lawyer Service in making the non-refoulement claim to the Director. In the Director’s decision, extensive references were made to the answers given by the applicant at the interview with the immigration officers which were translated into English. The applicant was fully assisted by the interpreter. Also, the documents filed in support of the present application were all prepared in English.   

15.As such, I do not see any merits in the 2^nd and 3^rd intended grounds, or any submissions contending that the applicant had suffered procedural unfairness.

16.After a detailed analysis of the applicant’s evidence given both before and at the hearing, the Board was willing to accept the applicant’s factual case about her ex-husband’s physical abuse and threat of using black magic against her and killing her upon the applicant’s return to Indonesia as a whole to be plausible and credible enough even though they were at times extremely vague and lacking important details. (see paragraphs 51 and 52 of the Board’s Decision). However, the Board found that the physical harm did not attain minimum level of severity, and given the change of his behaviour during the 5 to 6 years before the claim, the ex-husband did not have actual intent to harm the applicant, her children or her mother and the threat of black magic was an empty threat (see paragraphs 53 to 66 of the Board’s Decision). In any event, the Board took the view that state protection would be available, and internal relocation would be possible and not unduly harsh (see paragraphs 67 to 68 and paragraphs 96 to 99 of the Board’s Decision). Based on the available materials, the conclusions of the Board were clearly justifiable. I do not see any basis to suggest that the Board was irrational based on the principle set out in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223. Nor is there any basis to suggest that the Board was only minded to dispose of the applicant’s claim quickly without carefully considering the merits of the claim.

17.Finally, the Board’s Decision has, with respect, correctly and comprehensively set out the applicable legal principles. I do not see any errors in either the summary or the application of those legal principles.

18.Applying the enhanced standard of scrutiny, I do not see any errors of law, procedural unfairness or irrationality in the Board’s Decision.

19.I therefore dismiss the application for leave to apply for judicial review under the Form 86.

Dated the 4^th day of August 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