Case Document

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HCAL 578/2026

[2026] HKCFI 4714

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 578 OF 2026

BETWEEN

	Utami Windri	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” and the name of the putative interested party be amended to “Director of Immigration”.

2.  Leave granted to the applicant to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 9 March 2026.

3.  The applicant is directed to issue an originating summons for the intended judicial review on or before 2 September 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 16 March 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 9 March 2026 (“the Board’s 2026 Decision”). The Board’s 2026 Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2026/HCAL000578_2026_files/the_Board's_Decision.pdf

2.The Board found that the applicant had not made out a case for non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism. Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 15 November 2018 (“the Director’s Decision”) and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendments

3.In Form 86, the applicant named the Board and “Non Refoulement Claims Petition Office” as the putative respondents, and the Board, “Non Refoulement Claims” and the Director as the putative interested parties.

4.In fact, only the Board should be named as the putative respondent, and only the Director should be named as the putative interested party.

5.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 party at all.

6.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

Procedural history of the applicant’s case

7.When the applicant’s non-refoulement claim was rejected by the Director’s Decision, she filed an appeal/petition against the Director’s Decision to the Board on 23 November 2018. The Board made a decision dated 10 June 2019 (“the Board’s 2019 Decision”) dismissing the applicant’s appeal/petition against the Director’s Decision.

8.On 2 July 2019, the applicant filed an application for leave to apply for judicial review in respect of the Board’s 2019 Decision (“the Previous Leave Application”). In the Previous Leave Application, leave was granted by DHCJ Reuden Lai (as he then was) on 19 November 2024 for the applicant to apply for judicial review in respect of the Board’s 2019 Decision.

9.By a consent order dated 6 August 2025, the Board’s 2019 Decision was brought up and quashed by this court, and the applicant’s appeal/petition against the Director’s Decision was remitted to the Board (differently constituted) for fresh determination.

10.The applicant’s case was then re-assessed by the Board (differently constituted). The Board again dismissed the applicant’s appeal/petition against the Director’s Decision and confirmed the same by the Board’s 2026 Decision.

The applicant’s case

11.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 2026 Decision, which can be viewed in the hyperlink above.

12.In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she and her son would be harmed by her family, in particular she would be killed by her brother, due to her extramarital affairs in Hong Kong. The applicant claimed that since 2015, she was in cohabitation with a Hong Kong resident named HAU HING (“Hau”) and had given birth to their son HAU TIN MING ADRIAN (“Adrian”) in the same year.

Disposal on paper

13.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

14.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).

15.The applicant annexed a document with the title “Grounds on which Relief is sought” to her Form 86.

16.However, the grounds contained therein were all very general and were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations. Nevertheless, as the applicant is relying on the said grounds to make the Leave Application, this court will still deal with the grounds as discussed below.

17.Further, the applicant mentioned in her supporting affidavit dated 16 March 2026 that she disagreed with the decision maker, the decision maker did not give her justice and did not make proper investigation. She added that her life was threatened in her country.

Discussion

18.In the document attached to Form 86 with the title “Grounds on which Relief is sought”, there are a total of 8 paragraphs, but they are all very general allegations.

19.Some of the grounds listed in the said document were directed at the Director. However, the Director’s Decision was superseded by the Board’s 2026 Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). This court will therefore consider only those grounds directed at the Board in respect of the Board’s 2026 Decision.

20.Paragraphs 2, 4 and 5 in the said document were directed at the Director. Hence, they could not be used to challenge the Board’s 2026 Decision and can simply be ignored.

21.In paragraph 8, the applicant only asked this court to grant leave to have the Board’s 2026 Decision judicially reviewed. Thus, it is not a ground at all.

22.In paragraph 1, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test.

23.In paragraph 3, the applicant alleged that the adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on country of origin information but failed to take her personal background and experience into account.

24.In paragraph 6, the applicant alleged that the adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by her, and unreasonably required her to respond to questions that she was not in a position to offer any response.

25.In paragraph 7, the applicant simply alleged that the adjudicator ought to allow the appeal/petition and the Board’s Decision was irrational.

26.However, all the grounds stated in paragraphs 1, 3, 6 and 7 as aforesaid were advanced without any particulars.

27.The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.

28.Thus, none of the matters that were contained in the document with the title “Grounds on which Relief is sought” could establish any valid ground to challenge the Board’s 2026 Decision when they are so vague and general without any requisite particulars related to the applicant’s case.

29.Similarly, the applicant’s assertions in her supporting affidavit, namely that she disagreed with the decision maker, the decision maker did not give her justice and did not make proper investigation, were advanced without any specificity. The applicant did not specify which aspects of her case were not properly investigated.

30.Hence, none of the grounds advanced by the applicant can be valid ground for the intended judicial review.

31.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).

32.Thus, despite the fact that the applicant failed to advance any valid 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.

33.This court notes that leave was granted in the Previous Leave Application for the following reasons:-

(1)  The Board made no finding on who was taking care of the applicant’s son as at 2019 and who would take care of the son if the applicant were returned to Indonesia. The Board assumed that the son could live in Hong Kong by himself or that someone would be able to take care of the son in Hong Kong. Premised on the said assumptions, the Board then made a core assumption that the applicant would be returned to Indonesia by herself without her partner in Hong Kong and the son. When the Board made a finding without factual and evidential support, it was reasonably arguable that the Board erred in law.

(2)  It was reasonably arguable that the Board’s finding that the applicant might return to Indonesia without the son was Wednesbury unreasonable, as the Board made no finding as to who would take care of the son, and had totally disregarded the fate of a 4 years old (at the material time) boy.

(3)  Without supporting evidence, the Board could have erred in law or was irrational to find that the applicant’s feared threat owing to her extramarital affairs would disappear if the applicant would return to Indonesia by herself without her partner and her son.

34.It appears to this court that in paragraph 39 of the Board’s 2026 Decision, the Board (although differently constituted) made similar assumptions without any evidence in support, in that: (1) the Board had no doubt that Hau would not let the applicant take Adrian to Indonesia, because he wanted Adrian to take care of him, when he grew old; (2) Hau would look after Adrian; and (3) it was highly likely that Hau would continue to pay the applicant HK$3,000 per month, which was a substantial amount of money for her to be used in Indonesia, because he had been paying her monthly sum of money for years.

35.The applicant’s testimony at the oral hearing in the Previous Leave Application was that although she was still living with Hau, Hau was unable to support their son and the son had been receiving comprehensive social security assistance. The applicant also expressed clearly that if she was to return to Indonesia, she wanted her “family” to go with her.

36.Thus, not only that there was no evidence to support the Board’s findings that Hau would not let the applicant take Adrian to Indonesia, Hau would and could take care of Adrian, and Hau would and could continue to pay the applicant a monthly sum of HD$3,000 upon her return to Indonesia, such findings were in fact contrary to the applicant’s evidence in the Previous Leave Application. It seems to this court that the Board was making its own assumptions in this regard, and it is arguable that the Board’s findings in paragraph 39 of the Board’s 2026 Decision could be irrational.

37.Furthermore, the Board found that it was not a viable option for the applicant to rely on state protection to avoid the claimed risk, and the better option for her to rely on was internal relocation (see paragraph 40 of the Board’s 2026 Decision). The Board had given its reasons in paragraphs 41 to 44 of the Board’s 2026 Decision for the finding that it would not be unduly harsh or unreasonable for the applicant to relocate to a place other than her home place in order to earn a living and to avoid the risk of harm from her brother.

38.However, as can be seen in paragraph 44 of the Board’s 2026 Decision, the Board’s finding on internal relocation was at least partially based on its assumption that it was likely that Hau would continue to support the applicant financially. As aforesaid, such an assumption could be irrational.

39.From paragraph 61 of the Board’s 2026 Decision, it is also clear that the Board had assumed that the applicant was going back to Indonesia alone, as it stated that Hau would make monthly financial provisions to the applicant, so that she could lead a comfortable life, and in due course the applicant might visit Hau and her son Adrian in Hong Kong as a tourist from time to time.

40.This court finds that such findings, without any evidence in support, could not be regarded as good reasons for a conclusion that internal relocation was a viable option to the applicant. The Board in fact did not consider the situation when the applicant was returning to Indonesia with the son. Thus, the Board’s finding on the viability of internal relocation for the applicant could be flawed, when it was based on the irrational assumptions as aforesaid.

41.This court therefore finds that there could be unreasonableness and irrationality in the Board’s 2026 Decision as discussed above, which are sufficient for the applicant’s intended judicial review to be reasonably arguable.

42.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the court should grant leave to apply for judicial review when the claim is a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that there are realistic prospects of success for the applicant’s intended judicial review in respect of the Board’s 2026 Decision and hence leave is granted to the applicant to proceed with the intended judicial review.

Conclusion

43.For reasons aforesaid, leave is granted for the applicant to apply for judicial review in respect of the Board’s 2026 Decision and the applicant is directed to issue an originating summons for the intended judicial review on or before 2 September 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

Dated the 19^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: 19/08/2026 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: 19/08/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 14543(R) Director of Immigration Putative interested party’s ref. no.: QA T/C 4451/18 (Formerly as RBCZ 10605/18) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)