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

HCAL 945/2023

[2026] HKCFI 4642

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 945 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:

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 15 June 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 8 June 2023 (the “Board’s Decision”).

2.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 both the address provided by the Applicant to the Court and the address of the Applicant as informed by the Immigration Department in advance. Attempts were also made to contact and remind the Applicant of the hearing by phone at the numbers she provided to the Court and to the Immigration Department on 20 and 22 July 2026 but in vain. The Applicant did not attend the hearing.

3.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

4.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

5.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 of Immigration (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.)

6.The Applicant did not provide any grounds in support of the Leave Application on the Form. In the supporting Affirmation, apart from saying that she did not agree with the Board’s Decision, the Applicant made a number of points which can generally be summarized as follows:-

(a)  The Applicant claims that her life is under threat in Indonesia.

(b)  The Applicant claims that the Board did not take time to think about her life before dismissing her case.

(c)  The Applicant claims that she had submitted documents before the Board but the Board did not accept them as the Board could not understand the language of the documents. The Applicant further says she had requested time to translate the document but the Board/officer said it/he/she had no time.

(d)  The Applicant says the translator did not help her at all. She says the translator became angry when the Applicant did not understand what the translator said.

(e)  The Applicant claims that the interpreter told her not to take too long for the interview as the interpreter got another job.

7.I do not consider any of the above Applicant’s contentions meritorious. I shall briefly set out my reasons below.   

8.In relation to point (a), there is nothing to suggest that the Board had not considered the Applicant’s case carefully. The Applicant has failed to identify any errors allegedly committed by the Board. It should also be noted that the Board found that the Applicant is not a reliable or credible witness (§§80-83 of the Board’s Decision), and the Applicant’s complaint must be considered in light of such finding.  

9.Point (b) is a general and bare assertion without any particulars in support. A hearing was conducted before the Board on 31 March 2023 and the Applicant gave oral evidence in the hearing with the assistance of an interpreter (§§14, 44-71 of the Board’s Decision). There is nothing to suggest that the Board had failed to carefully consider the Applicant’s claims.

10.In respect of Point (c), the Applicant has failed to identify the “documents” she is referring to which the Board had allegedly refused to accept. The Board had duly considered all the documents in the hearing bundle (§73 of the Board’s Decision). There is also no indication in the Board’s Decision that the Applicant had requested further time to submit new documents or prepare translation.

11.Point (d) is also a bare assertion without any particulars in support. If the interpreter was indeed rude or unreasonable to the Applicant at the hearing before the Board, the Board would have no doubt intervened. There is also nothing to indicate that the Applicant had made such complaint to the Board at the hearing.

12.In respect of point (e), it is not clear whether the Applicant is referring to the interpreter in the hearing before the Board, or the interpreter during the interview process before. In any event, the allegation is again not particularized.

13.Having fully 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 her case based on the reasons provided (§§80-104 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.

14.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.

15.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, as well as the grounds advanced by the Applicant.

Conclusion

16.In the premises, I make an order that 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