Case Document

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HCAL 1053/2023

[2026] HKCFI 4576

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1053 OF 2023

BETWEEN

	Aeni Hidayatul	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 or counsel in open court;

Order by Deputy High Court Judge Michael WONG:

1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 8 May 2023”.

2. 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 29 June 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 “April 4 – 2022”.

2.The Director of Immigration (“the Director”) made a decision dated 4 April 2022 (“the Director’s Decision”) in respect of the applicant’s claim for non-refoulement protection. Thus, the date of “April 4 – 2022” should be the date of the Director’s Decision.

3.However, the applicant lodged an appeal/petition against the Director’s Decision on 11 April 2022. The decision of the Board regarding the applicant’s appeal/petition against the Director’s Decision was made on 8 May 2023 (“the Board’s Decision”).

4.Thus, the Director’s Decision was superseded by the Board’s Decision and was not susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). It is clear that the Board’s Decision should be the subject matter of the Leave Application, and the date of decision put in Form 86 should only be a mistake.

5.The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001053_2023_files/the_Board's_Decision.pdf

6.The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the Director’s Decision and affirmed the same, which rejected the applicant’s non-refoulement claim.

Amendments

7.In Form 86, the applicant named herself and “TORTURE CLAIM APPEAL BOARD / NON-RE-REFOULMENT CLAIM PETITION OFFICE” as the putative respondents, and herself and “DIRECTOR OF IMMD” as the putative interested parties.

8.In fact, as aforesaid, the Board’s Decision should be the subject matter of the Leave Application. Thus, only the Board should be named as the putative respondent, and only the Director should be named as the putative interested party.

9.It was not necessary and actually wrong for the applicant to name herself as both the putative respondent and the putative interested party.

10.The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent too.

11.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration”, and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 8 May 2023”.

The applicant’s case

12.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.

13.In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would face risk of serious harm as her family owed a moneylender named USMAN a debt which she could not repay.

Disposal on paper

14.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

15.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).

16.The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 29 June 2023.

Discussion

17.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).

18.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.

19.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 19 April 2023. The applicant was present and was thus given the chance to present her case to the Board in person.

20.As can be seen from the Board’s Decision, the Board analysed the applicant’s claim in detail, and gave full and detailed reasoning in rejecting the applicant’s claims. Its assessment on the credibility of the applicant’s claims and evidence were laid out in paragraphs 18 to 55 of the Board’s Decision, and it is not necessary to repeat the same here.

21.In gist, the Board found the applicant’s account not credible and her account was rejected as untruthful. The applicant did not provide any documentary evidence in support of her claim. The Board considered her account of the loan vague and unsubstantiated, her explanations for the inconsistencies in evidence unsatisfactory, and the Board did not accept them.

22.The Board also found the applicant’s account about the threats from the moneylender general and unsubstantiated, and did not accept it as well. The moneylender had never attacked the applicant’s family in Indonesia. The Board found the applicant’s assertion that the moneylender targeted her because she was perceived to be richer than her siblings, untenable. There was no evidence substantiating the applicant’s assertion that the moneylender had extensive network and huge resources. The Board did not accept that the applicant had suffered any physical or mental ill-treatment, as alleged or at all.

23.The Board also assessed the applicant’s risks under all the applicable grounds of the USM in paragraphs 56 to 108 of the Board’s Decision. The Board found that even if the applicant might be ill-treated upon her return to Indonesia, any ill-treatment would not be due to a Convention reason. There was no evidence of state acquiescence in the alleged ill-treatment by the moneylender.

24.Moreover, the applicant’s employment in Hong Kong was terminated in June 2017 while the applicant claimed that the concerned loan, which led to her fear of return to Indonesia, was only obtained in 2018. The applicant hence faced no risk of harm in Indonesia at all at the time when her employment was terminated. The Board found that the applicant’s intentional delay in seeking protection was unfavorable to her credibility.

25.The Board assessed the availability of state protection to the applicant in paragraphs 71 to 83 of the Board’s Decision. After considering the applicant’s evidence and country of origin information (“COI”), the Board found that a reasonably effective criminal system existed in Indonesia, and assistance was available to the applicant.

26.Further, the Board had laid out its full reasons in paragraphs 109 to 113 of the Board’s Decision for the finding that even assuming that the applicant still faced risk of harm from the moneylender, it was reasonable and not unduly harsh for the applicant to reside and work elsewhere within Indonesia, such as Jakarta, Surabaya, Medan and Bali, to lower or negate any perceived harm.

27.Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

28.The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI 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.

29.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.

30.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

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

Dated the 12^th day of August 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: 12/08/2026 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: 12/08/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 20130 Director of Immigration Putative interested party’s ref. no.: QA T/C 25/22 (Formerly RBCZ 11409/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)