Tri Wahyuni v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 947/2023 [2026] HKCFI 4644 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 947 of 2023 BETWEEN
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord 53 r 3) Following:
Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong:
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.On the Form, the Applicant named the Board as both the proposed respondent and the proposed interested party. As it is trite that the Board should be the proposed respondent whereas the Director of Immigration (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 both the address provided by the Applicant to the Court and the address of the Applicant as informed by the Immigration Department in advance. The Applicant was also reminded of the hearing by phone on 22 July 2026. Despite the aforesaid, the Applicant did not attend the hearing. 4.As the Notice of Hearing was properly served at the address provided by the Applicant and that the Applicant was further reminded of the hearing by phone, 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, apart from exhibiting a copy of the Board’s Decision, the Applicant simply stated that she did not want to go back to Indonesia as her life would be in danger there because of the loan shark. No meaningful grounds have been provided in support of the Leave Application. 8.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 her case based on the reasons provided (§§38-97 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. 9.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. 10.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 11.In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed. Dated the 11th 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 |
Cases cited in this judgment