Elsa Wulandari v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 187/2023

[2026] HKCFI 4747

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 187 of 2023

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Isaac Chan:

1.  The Form 86 be amended to name Torture Claims Appeal Board/ Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.By a Form 86 filed on 9 February 2023 (“Form 86”), the applicant applied for leave to apply for judicial review against her “subsequent claim” after her original claim was dismissed by the Director of Immigration (“Director”). In the supporting affirmation, the applicant exhibited the decision of the Torture Claim Appeal Board / the Non-refoulement Claims Petition Office (“Board”) dated 1 February 2023 (“Board’s Decision”)[1] confirming the decision of the Director of Immigration dated 4 June 2021 and rejecting the applicant’s non-refoulement claim.

2.At the hearing on 13 May 2026, I clarified with the applicant about which decision was intended to be the subject of the application. The applicant confirmed her intention to apply for leave to apply for judicial review against the Board’s Decision.

3.In the Form 86, the Director was named both as the putative respondent and the putative interested party. Having clarified the applicant’s intention, the Board should be named as the putative respondent, and the Director should be the putative interested party instead. The Form 86 shall be amended accordingly on the court’s own motion.

4.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.

5.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.

6.General assertions without particulars cannot be effective grounds to support a judicial review: see Re Fabio Arlyn Timogan [2020] HKCA 971, at paragraph 23.

7.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

8.In the affirmation in support, the applicant reiterated her wish to stay in Hong Kong and her fear that, as a transgender, her family would kill her upon return to Indonesia. The applicant has not provided any further grounds for the intended application for judicial review.

9.At the hearing on 13 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.

10.Applying the enhanced standard of scrutiny, I do not see any errors of law, procedural unfairness or irrationality in the Board’s Decision.

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 16 September 2022 (see paragraphs 2 to 7 of the Board’s Decision). The applicant has not made any complaints of irregularities or unfairness in the entire process.

13.After a detailed analysis of the applicant’s evidence given both before and at the hearing, the Board found that, as a transgender who had undergone some (but not full) transition to become a man and had sexual orientation towards woman, there was no real risk that the applicant would be subject to serious harm, whether from her mother and brother or the society in general, upon her return to Indonesia (see paragraphs 69 to 71, 84 to 108 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 paragraphs 83, 84 to 108, and paragraphs 149 to 164). The Board concluded the applicant had failed to establish the proscribed risks. 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.

14.I therefore dismiss the application for leave to apply for judicial review under the Form 86.

Dated the 20^th 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