Kasmari Sarmini Binti Sarman v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office
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HCAL 390/2023 [2026] HKCFI 4661 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 390 of 2023 BETWEEN
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following;
Order by Deputy High Court Judge (Non-refoulement Claims) Isaac Chan:
Observations for the Applicant: 1.By a Form 86 filed on 15 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 8 March 2023 (“Board’s Decision”) confirming the decision of the Director of Immigration (“Director”) dated 31 March 2022 and rejecting the applicant’s non-refoulement claim.[1] 2.In the Form 86, the Director was named both as the putative respondent and the putative interested party, which the decision in respect of which relief is sought was stated to be a decision dated 8 March 2023, which was the date of the Board’s Decision. As such, the putative respondent should be the Board, whilst the Director should be the putative interested party only. The Form 86 shall be amended accordingly on the court’s own motion. 3.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. 4.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. 5.General assertions without particulars cannot be effective grounds to support a judicial review: see Re Fabio Arlyn Timogan [2020] HKCA 971, at paragraph 23. 6.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 7.In the affirmation in support of the Form 86, the applicant has set out the following complaints:
8.At the hearing on 12 May 2026, the applicant was absent. 9.Applying the enhanced standard of scrutiny, I do not see any errors of law, procedural unfairness or irrationality in the Board’s Decision. 10.As apparent from the Board’s Decision, the applicant’s non-refoulement claim was reassessed comprehensively. The allegation that the Board did not consider the applicant’s claim, directly dismissed it without taking time or thinking about her life is baseless. 11.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. 12.The Board’s Decision has also set out the procedural history of the applicant’s non- refoulement claim, including the details of the hearing before the Board on 21 November 2022 (see paragraphs 5 to 6, 12 to 13 and 30 of the Board’s Decision). 13.It was recorded in paragraph 6 of the Board’s Decision that the applicant was legally represented at the interview with the Immigration Department. The complaint against the interpreter at the interview for urging her not to take long was without particulars, particularly in relation to how it had prejudiced the applicant’s right to present her case fully and fairly to the Immigration Department. In the absence of such particulars, and in light of the presence of legal representatives to protect her right at the interview, the complaint against the interpreter at the interview has no merits. 14.Paragraph 13 of the Board’s Decision recorded that the applicant was assisted by an interpreter at the appeal hearing. The applicant adopted the information from the hearing bundle, the non-refoulement claim form, the interview with the Immigration Department and the notice of appeal. Contrary to the applicant’s assertion, there is no record of the applicant’s request to submit documents in Indonesian language or time to translate and to prepare for the appeal hearing. Also contrary to the applicant’s assertion, it was recorded in paragraph 30 of the Board’s Decision the adjudicator was satisfied with the stand of the interpreting, and the applicant was able to communicate effectively. It was further observed by the Board that the applicant understood the Board’s proceedings and that she participated fully and in a meaningful way. Without any particulars, the complaint against the adjudicator and the interpreter has no substance and is therefore unarguable. 15.After a detailed analysis of the applicant’s evidence given both before and at the hearing, the Board concluded that based on the conduct of the moneylender who purportedly threatened the applicant, her sister and her son but never actually harmed them, there was no evidence that the applicant faced a real risk of proscribed harm from the moneylender, and there was no evidence to suggest the moneylender would carry out the threat (see paragraphs 32 and 46 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 paragraph 47 to 48). 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. 16.I therefore dismiss the application for leave to apply for judicial review under the Form 86. Dated the 17th 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 |
Cases cited in this judgment