Duniati v. Torture Claims Appeal Board
|
HCAL 843/2026 [2026] HKCFI 4533 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 843 OF 2026 BETWEEN
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 4 May 2026, 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 25 December 2025 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant was unable to make out her claim for non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 20 November 2025 and confirmed the same, which rejected the applicant’s non-refoulement claim. Amendment 3.In Form 86, the applicant named “TORTURE CLAIMS APPEAL BOARD NON-REFOULEMENT CLAIMS PETITION OFFICE” as the putative respondent, when only the Board should be so named. 4.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a respondent at all. 5.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”. The applicant’s case 6.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. 7.In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she feared being harmed or killed by a loan shark due to her husband Bambang’s loan problem. She also claimed that she would be ill-treated or even killed by Bambang. Disposal on paper 8.The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper. Grounds for judicial review 9.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). 10.The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affidavit/affirmation dated 4 May 2026. Discussion 11.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). 12.Thus, despite the fact that the applicant failed to advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid. 13.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 22 December 2025. The applicant was present and was thus given the chance to present her case to the Board in person. 14.As can be seen from the Board’s Decision, the Board questioned the applicant extensively at the Board’s hearing to try to understand her case better. The Board gave full and detailed reasoning in rejecting the applicant’s claims. Its assessment on the credibility of the applicant’s claims were laid out in paragraphs 90 to 91 of the Board’s Decision, and it is not necessary to repeat the same here. 15.In gist, the Board found the applicant’s accounts unbelievable, self-contradictory or otherwise not credible in various crucial aspects. The Board did not accept her evidence as regards the threats she allegedly faced. Hence, the Board found that she had not shown that she faced a real risk of harm if refouled. 16.The Board also found that even if it found the applicant credible, the Board did not find her to be facing a real risk of harm. By the applicant’s own admission, she was not really afraid of the alleged loan shark. It was the applicant’s own evidence that the loan shark had never even met her or been in contact with her. The Board also found the applicant’s fears as regards Bambang was even more fanciful. Bambang depended on her financially, and it would be harmful to his own safety if he were to get rid of the applicant. He was jobless and had no powerful connections. His past incidents of violence were at a low level of severity and only happened in 2018. 17.In consideration of the applicant’s claims under the USM, the Board found that none of the reasons applicable to Persecution Risk[1] applied in the applicant’s case. The applicant did not face a real risk of being deprived of life under BOR 2 Risk[2], and was never subjected to harm at the level of torture or CIDTP[3] required under BOR 3 Risk[4]. The applicant’s case did not indicate that the authorities would fail to discharge its duties or tolerate any unlawful and abusive behaviour committed by an individual as a systemic practice. In any event, the applicant’s alleged disputes, which were private in nature, did not establish the elements in section 37U of the Immigration Ordinance and hence a case for protection under Torture Risk[5]. 18.Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM. 19.The Board did not consider availability of state protection and viability of internal relocation. However, as the Board found the applicant did not face a real risk of torture, ill-treatment, arbitrary deprivation of life or persecution at the hands of her husband or the alleged loan shark, it is not necessary for the Board to consider the availability of state protection. 20.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). 21.As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to further consider internal relocation. 22.The finding of facts relating to a non-refoulement claim, 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. This court finds nothing wrong or unreasonable in the way the Board reached its decision. 23.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 errors 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. 24.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 25.For reasons aforesaid, the Leave Application is dismissed. Dated the 12th 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 [1] Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to Status of Refugees. [2] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383. [3] Cruel, inhuman or degrading treatment or punishment. [4] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383. [5] Risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115. |
Cases cited in this judgment