Sri Utari v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office
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HCAL 405/2023 [2026] HKCFI 4662 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 405 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 17 March 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 6 March 2018 and rejecting the applicant’s non-refoulement claim. I note that despite the applicant’s son was also an appellant before the Board, there is no application made by or on behalf of him in the Form 86. 2.In the Form 86, the Board was named both as the putative respondent and the putative interested party. The Director should be the putative interested party instead. 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 reiterated her claim that she could not go back to her country at that moment as her life was not safe there. The applicant has not provided any other grounds for the intended application for judicial review. 8.At the hearing on 12 May 2026, the applicant confirmed that she did not have any submissions to supplement the documents filed in support of the application under the Form 86. 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.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. 11.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 16 August 2021 (see paragraphs 3 to 5 and 20 of the Board’s Decision). The applicant has not made any complaints of irregularities or unfairness in the entire process. 12.After a detailed analysis of the applicant’s evidence given both before and at the hearing, the Board concluded that, notwithstanding the applicant’s case that her mother and brother threatened to kill her for disgracing the family by giving birth to her son out of wedlock and she and her son would suffer a lot of hardships if she returned to Indonesia, the applicant could not establish the proscribed risks (see paragraphs 44 to 49 of the Board’s Decision). In any event, the Board took the view that internal relocation would be possible and not unduly harsh given she could seek help from identified non-governmental organisations and her son’s fundamental rights, including education and proception, were still recognised by Indonesian law (see paragraphs 62 to 66 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. 13.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