Rohaini v. Torture Claims Appeal Board
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HCAL 634/2024 [2026] HKCFI 4941 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 634 OF 2024 BETWEEN
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 22 April 2024, 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 29 January 2024 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant’s claim for non-refoulement protection in Hong Kong failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 19 October 2023 and confirmed the same, which rejected the applicant’s non-refoulement claim. The applicant’s case 3.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. 4.In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she feared being harmed or killed by her husband as she demanded to divorce him. Disposal on paper 5.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 6.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). 7.The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 22 April 2024. In the said affirmation, the applicant only mentioned that she was afraid to go back to Indonesia as her husband would kill her because she wanted a divorce, and that she was pregnant with her boyfriend in Hong Kong. Discussion 8.First of all, the applicant’s danger from her husband due to her demand to divorce him 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. 9.The applicant’s pregnancy in Hong Kong was not presented to the Board for assessment. The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage. The applicant cannot ask this court to assess or re-assess her non-refoulement claim based on matters that had not been presented to the Board. 10.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). 11.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. 12.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 26 January 2024. The applicant was present and was represented by duty lawyer assigned by Duty Lawyer Service. Thus, she was given the chance to present her case to the Board through her legal representative. 13.As can be seen from the Board’s Decision, the Board did analyze the applicant’s case with care and give due consideration to the arguments by counsel for the applicant. Its assessment on the applicant’s claims against all the applicable grounds under the USM were laid out in paragraphs 37 to 58 of the Board’s Decision, and it is not necessary to repeat the same here. 14.In gist, the Board found that the applicant had never been attacked by her husband at all. The applicant’s husband had never physically abused the applicant during their marriage. The Board found that the applicant’s husband had left home and gone missing in 2022 when police came to her home looking for her husband about a complaint of her husband beating up their daughters. His whereabouts was unknown to the applicant after he left. The Board further found that the applicant’s husband only threatened the applicant over the phone twice and it was clear from the evidence that he uttered the threats out of spur of moment without any intention to seriously carrying out his threat. In fact, the evidence suggested that he abandoned the family since 2022. Moreover, the applicant’s problem with her husband was only a domestic dispute that had nothing to do with any of the Convention reasons. 15.Counsel for the applicant argued that the help to women like the applicant from the Yayasan Lembaga Bantuan Hukum – APIK (“LBH – APIK”), a leading network of legal aid society for women in Indonesia, which mainly focused in large provinces of the country and would not provide help to women in rural or remote area in the country, was limited. However, the Board found that there was a network of 16 legal aid society for women in Indonesia. There were also other non-government organizations like the Female Headed Household Empowerment Program, which assisted poor women and children from the grassroot and rural areas. 16.The Board also addressed the concern raised by counsel for the applicant that even if LBH – APIK could help, the applicant could not get the protection she should have because the judiciary was also corrupted. The Board found that although country of origin information (“COI”) did show that the problem of corruption existed in Indonesia, there was also information showing that the Indonesian government did take measures to improve the Indonesian police in terms of efficiency and concern for human rights. 17.The Board had also given full reasons in paragraphs 59 to 63 of the Board’s Decision for its conclusion that internal relocation was a viable option to the applicant to avoid her husband if she was to return to Indonesia. 18.Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM. 19.The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI 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. 20.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. 21.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 22.For reasons aforesaid, the Leave Application is dismissed. Dated the 2nd day of September 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
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Cases cited in this judgment