Case Document

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HCAL 2197/2023

[2026] HKCFI 4720

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2197 OF 2023

BETWEEN

	Musrikah	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 interested party be amended to “Director of Immigration”.

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 8 December 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 30 November 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL002197_2023_files/the_Board's_Decision.pdf

2.The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 13 December 2022 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 interested party, when the Director should be so named.

4.Thus, this court makes an order on its own motion to amend the name of the putative interested party to “Director of Immigration”.

The applicant’s case

5.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.

6.In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she feared being ill-treated or killed by four loan sharks as she failed to repay the loans of her late husband.

Disposal on paper

7.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

8.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).

9.The applicant did not advance any ground for her intended judicial review in Form 86.

10.In her supporting affirmation dated 8 December 2023, the applicant merely repeated the basis of her non-refoulement claim, namely that the debt collectors would kill her as she could not repay the debts of her late husband. She asked for more time to stay in Hong Kong as she felt safe here.

11.The applicant filed a written submission dated 6 November 2024 containing some general grounds for her intended judicial review, which were in fact used by many other applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions without any regard to their own situations. Likewise, the applicant did not explain or give any particulars as to how those general grounds were applicable to her own case.

12.She filed another affirmation dated 2 June 2025 where she asked for leave to file a written submission in support of her Leave Application. In fact, leave was not required and the applicant actually attached a written submission dated 2 June 2025 to the said affirmation.

13.Similar to her written submission dated 6 November 2024, the applicant again asserted some general grounds which were used by many other applicants in similar applications, and again did not explain or give any particulars as to how those general grounds were applicable to her own case.

14.Nevertheless, as the applicant is relying on those grounds, this court will deal with them as discussed below.

Discussion

15.First of all, the applicant’s reiteration of the basis of her non-refoulement claim in her supporting affirmation dated 8 December 2023 cannot help her at all. Her danger from the creditors of her late husband had been duly assessed but rejected by the Board. If she intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

16.In the applicant’s written submissions dated 6 November 2024, the applicant first mentioned that her problem in her country still continued, her enemies were looking for her desperately, she would face serious risk upon refoulement and the Board failed to consider the fear she would face difficulty.

17.As aforesaid, the applicant’s risks had been assessed by the Board and her challenge on the Board’s finding of facts is not permissible in an application for judicial review.

18.Then, she set out some general grounds under 8 paragraphs, which were numbered from 4 to 11.

19.In paragraph 11 of the said written submission, the applicant only asked this court to grant leave for her judicial review. Hence, it is not a ground at all.

20.The remaining paragraphs, ie paragraphs 4 to 10 of the applicant’s written submission dated 6 November 2024, are reproduced as follows:-

“4. Procedural Impropriety) Failure to properly apply para 2 of the UN committee against Torture General Comment No.2 whereby satisfaction of a National states obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event, cf, the TCAB and the Director Decision which focused on whether such reliefs showed merely signs of positive improvement (see also JFK CACV 103/ 2014).

5. Procedural Impropriety) Failure to conduct sufficient inquiry into the relevant country of origin conditions. The TCAB Failure to consider that I would face serious risk from my enemies who will harm me because of my political and statistical view which consider a serious matter for which he would harm me upon refoulement. The TCAB completely failed to materialize my fear in my claims.

6. Procedural Impropriety/ Irrationality) Failure to reasons for assessment of Lack of BOR 2risk and / or sufficient basis to support conclusion of lack of BOR 2risk. I would like to review my decision under BOR 2 that my life still in risk upon refoulement to my country of origin for which I would seek protection for my life.

7. Error/ Misdirection in law) Failing to consider the considerations of psychological strain and threats to me personally or threats to me directly to kill me. My enemies are still looking for me, my risk of my life continues so in this circumstance I would not dare to return to my country.

8. Procedural Impropriety) The TCAB Failure to consider our fear that my enemies still fear me, I could not return to my country in this circumstance, therefore there are genuine risk waiting for me, and I could not relocate other places because they could easily trace me wherever I hide in my country.

9. Errors/ Misdirection in law) The TCAB failure to assess my fear and my country-of-origin conditions that whereas I would return I would not face a terrible risk upon refoulement, my life is under risk from my enemies so that I would not agree the decision of the Director so that i would review my decision.

10. No sufficient basis to conclude that my family members would not to be at risk of being subjected to torture and or / CIDTP upon refoulment. Although my non-refoulement claim assessed under Torture risk, BOR 1 & 2 risk and risk of persecution.”

21.In both paragraphs 4 and 5 as quoted above, the applicant challenged the Board’s consideration of “para 2 of the UN committee against Torture General Comment No. 2” and “the relevant country of origin conditions”. However, the applicant did not give any particulars of such challenges which were relevant to her case. On the face of it, it seems that the applicant was challenging the Board’s consideration of the availability of state protection for her.

22.However, these grounds are simply irrelevant, as the Board did not consider availability of state protection at all. After assessment of the applicant’s case, the Board found that the applicant did not face a real risk of torture, ill-treatment, arbitrary deprivation of life or persecution at the hands of the alleged loan sharks from whom her late husband allegedly borrowed money before he died, as the Board did not accept her claims in this regard at all (see paragraph 87 of the Board’s Decision). Hence, it was not necessary for the Board to consider the availability of state protection.

23.Paragraph 6 of the said written submission has no merits at all. The Board referred to the law about BOR 2 Risk in paragraph 94 of the Board’s Decision, provided an assessment of the alleged risk in the applicant’s case in detail in paragraphs 46 to 70, did not accept that she had been threatened with death or that she would be killed by the four loan sharks, and found that the applicant’s life was not at risk for the reasons she had claimed (see paragraph 95 of the Board’s Decision). Thus, the Board did give sufficient reasons for its conclusion that BOR 2 Risk was not substantiated.

24.Paragraphs 7 to 10 of the said written submission are all general allegations against the Board’s finding of facts, including its finding on internal relocation, but the applicant did not provide any particulars for these allegations.

25.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”. Thus, they cannot amount to any valid grounds for the intended judicial review.

26.Therefore, all the matters that were contained in the applicant’s written submissions dated 6 November 2024 do not constitute any valid ground to challenge the Board’s Decision.

27.As to the applicant’s assertions in her written submission dated 2 June 2025, there are a total of 6 paragraphs in the said written submission.

28.The applicant only mentioned that she was a non-refoulement claimant in paragraph 1, which was not a ground at all.

29.In paragraph 2, the applicant stated that she disagreed with the Board’s Decision and she did not think that her case had been determined fairly.

30.In paragraph 5, the applicant complained that the Board was in breach of procedural fairness in that the Board “had unlawfully fettered his discretion”, “acted in a procedural unfairness”, “failed to meet the greater care and duty owed to a self-represented claimant”, and the Board’s Decision was “unreasonable or irrational in the public law sense or was a result of procedural errors or unfairness”.

31.In paragraph 6, the applicant asserted that the discriminatory act of authorities towards non-refoulement claimants merely on the basis of quick disposal was unacceptable and was determinate to the spirit of judicial system.

32.However, the applicant’s complaints or accusations in paragraphs 2, 5 and 6 as aforesaid were all advanced without any particulars. Hence, none of them could establish any valid ground to challenge the Board’s Decision (see Re Mizan Sikder; Re Aziz Nasir; and Re Kharsu Numan, supra).

33.In paragraph 3 of the applicant’s written submission, she mentioned that it was not easy for her to appeal against the Board’s Decision without knowing how her case was determined. She believed that there should have been a proper and fair mechanism that allowed unrepresented litigants to understand more about their claim.

34.The applicant also complained in paragraph 4 that she was never provided with proper legal and language assistance, and hence she believed that it was procedurally unfair to her.

35.However, the applicant was actually provided with legal assistance during the first-tier screening of her non-refoulement claim. The Court of Appeal has repeatedly emphasized that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37). Thus, there is no substance in this allegation.

36.As to her complaint that there was a lack of language assistance, it is trite that the high standards of fairness required by law would not entail interpretation service being made available at any time the applicant desires (see Re Gurnishan Singh [2018] HKCA 704 and Re Gurung Sagar [2019] HKCA 658).

37.In fact, all the documents filed by the applicant in relation to the Leave Application were written in English. This indicates clearly that the applicant is either familiar with the English language or she has access to such language assistance if needed. The applicant cannot claim that she has been prejudiced at all. Thus, the lack of language assistance is not an arguable ground either.

38.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).

39.Thus, despite the fact that the applicant failed to advance any valid grounds for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

40.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 3 November 2023. The applicant was present and was thus given the chance to present her case to the Board in person.

41.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 applicant’s claims and evidence was laid out in paragraphs 46 to 70 of the Board’s Decision, and it is not necessary to repeat the same here.

42.In gist, the Board was not satisfied that the applicant’s claims were truthful. The Board found that the applicant had given untrue evidence and made untrue claims in an attempt to extend her stay in Hong Kong. There was no evidence that the applicant’s husband took out any loans while she and her husband were in a spousal relationship. The applicant had no documentary evidence about the loans allegedly taken out by her late husband from four loan sharks before his death, nor could she provide any information about the loan sharks or any details about the alleged loans. The Board did not find it credible that the applicant would not have asked her daughter, who informed her of the outstanding loans and the threats from the loan sharks, for the names of the loan sharks. Together with the inconsistencies and omissions in the applicant’s evidence, the Board was not satisfied that the applicant’s husband took out loans from four loan sharks for which the applicant was responsible, or that four loan sharks had threatened to kill her when she returned to Indonesia.

43.Despite its findings as summarised above, the Board went on to assess the viability of internal relocation for the applicant. The Board had given its reasons in paragraphs 72 to 77 of the Board’s Decision for the finding that the applicant could safely and reasonably relocate to another part of Indonesia to avoid any perceived harm.

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

45.As aforementioned, the Board did not consider availability of state protection. However, as the Board found that the applicant did not face a real risk of any of the proscribed forms of harm at the hands of loan sharks from whom her husband allegedly borrowed money before he died, it is not necessary for the Board to consider the availability of state protection.

46.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.

47.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.

48.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

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

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 21292 Director of Immigration Putative interested party’s ref. no.: QA T/C 1149/22 (formerly RBCZ 5001024/22) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)