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

HCAL 382/2023

[2026] HKCFI 4446

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 382 of 2023

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 (Non-refoulement Claims) Isaac Chan:

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

Observations for the Applicant:

1.By a Form 86 filed on 14 Mar 2023 (“Form 86”), the applicant 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 3 March 2023 (“Board’s Decision”)[1] confirming the decision of the Director of Immigration (“Director”) dated 16 November 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 he could not understand, and also refused to allow the applicant time to translate those documents and 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.At the hearing on 7 May 2026, the applicant confirmed that she did not have any submissions to supplement the intended grounds and other documents filed in support of the application under the Form 86.

8.I have considered the three intended grounds. None of them are arguable grounds for the intended judicial review.

9.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. 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.

10.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 5 January 2023. According to paragraph 27 of the Board’s Decision, the applicant confirmed the truth and correctness of her non-refoulement claim form and record of interview with the Immigration Department and that no amendment or update was necessary. Paragraph 26 of the Board’s Decision also stipulated that the applicant did not submit any supporting materials for her claim. The Board’s Decision has also recorded various parts of her oral evidence (see paragraphs 29, 30 and 37 for example) in detail, which apparently suggested that she was fully assisted by interpreter.  

11.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 had no submissions to supplement any of her intended grounds, which are without particulars.

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

13.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.

14.After a detailed analysis of the applicant’s evidence given both before and at the hearing, the Board rejected the applicant’s case that she had a dispute with her brother over the estate of her adopted father and her brother threatened to kill her in order to take her share in the estate as untruthful. The Board did not accept that the applicant had been threatened by her brother as alleged or there was a real risk that the applicant would be ill-treated or at risk of arbitrary deprivation of life if she was returned to Indonesia (see paragraphs 26 to 51 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 70 to 81 and paragraphs 107 to 110 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.

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

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

Dated the 11^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