Dwi Winarsih v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 831/2023

[2026] HKCFI 4635

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 831 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 the Applicant being absent in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong:

1.  Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the only Putative Respondent; and (2) the Director of Immigration be named as the Putative Interested Party.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By Form 86 filed on 29 May 2023 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 19 May 2023 (the “Board’s Decision”).

2.On the Form, the Applicant named both the Board and the Director of Immigration (the “Director”) as the proposed respondents. The Applicant further named the Board as the proposed interested party. As it is trite that the Board should be the only proposed respondent whereas the Director should be the proposed interested party in an application of this sort, I make an order to amend the Form on the Court’s own motion.

3.The Applicant requested an oral hearing for the Leave Application. The hearing took place on 27 July 2026. Notice of Hearing was issued to the Applicant at the address provided by the Applicant to the Court in advance. The said address was also confirmed by the Immigration Department as the Applicant’s latest address on record. Attempts were also made to contact and remind the Applicant of the hearing by phone at the number provided by the Applicant to the Court (which is also the number provided by the Applicant to the Immigration Department) on 20 and 22 July 2026 but in vain. The Applicant did not attend the hearing.

4.As the Notice of Hearing was properly served at the address provided by the Applicant, I consider it appropriate to proceed with the Leave Application in the absence of the Applicant.

Background

5.The Applicant’s background, the basis of her claim and the arguments she advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision[1] is included below for reference.

Discussion

6.The applicable legal principles relating to application of this sort are well established. The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.)

7.The Applicant did not provide any grounds in support of the Leave Application on the Form. In the supporting Affirmation, the Applicant simply stated that she wanted to apply for leave to apply for judicial review in respect of both the Board’s Decision and the decision of the Director dated 25 April 2022 (the “Director’s Decision”).

8.The Director’s Decision had already been superseded by the Board’s Decision. The Director’s Decision is not susceptible to judicial review once appeal to the Board had been pursued (see Re: Moshsin Ali [2018] HKCA 549, at §§31-45). Accordingly, in so far as the Applicant seeks leave to apply for judicial review in relation to the Director’s Decision, the application fails in limine and is dismissed.

9.Apart from attaching the Board’s Decision and the Director’s Decision to the Affirmation, the Applicant did not provide any grounds in support of the Leave Application.

10.Having carefully and thoroughly considered the Board’s Decision. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board was entitled to reject the Applicant’s claims based on the reasons provided (§§53-69, 79, 84-88, 94, 98-100, 104-109, of the Board’s Decision). The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. There is plainly no basis to say that the Board had failed to assess the Applicant’s claims properly.

11.In the premises, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.

12.Leave application of this sort 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 §23). Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me.

Conclusion

13.In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed.

Dated the 11^th 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

Form CALL-1