Case Document

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HCAL 2200/2024

[2026] HKCFI 5301

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2200 OF 2024

BETWEEN

	Wiwin-Winarsih	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the applicant in open court;

Order by Deputy High Court Judge Michael WONG:

1. On this court’s own motion, the name of the putative interested party be amended to “Director of Immigration”.

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

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 20 November 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 8 November 2024 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL002200_2024_files/the_Board's_Decision.pdf

2.The Board found that the applicant was unable to establish a real likelihood of risk pertinent to any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 4 March 2024 and confirmed the same, which rejected the applicant’s claim for non-refoulement protection.

Amendment

3.In Form 86, the applicant named the Board as both the putative respondent and the putative interested party, when the Board should be named only as the putative respondent, and the Director should be named as the putative interested party.

4.Thus, on this court’s own motion, the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

5.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.

6.In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed and killed by her creditor Jajo due to her inability to continue to repay a loan obtained from Jajo. The applicant also claimed that she would be killed by her father due to her pregnancy in Hong Kong out of wedlock.

Oral hearing

7.The applicant requested for an oral hearing and her case was heard on 3 September 2026, together with her son’s application for leave to apply for judicial review in HCAL 389/2026.

8.When this court asked the applicant for the grounds of her intended judicial review, she merely said that her problems still existed in Indonesia but her problems had all been presented to the Board. She confirmed that there was nothing wrong with the Board’s Decision. Nevertheless, she said that her child was born out of wedlock, and her family would not accept her. Therefore, her problem was not solved.

Grounds for judicial review

9.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).

10.The applicant did not advance any grounds for the intended judicial review in Form 86, nor in her supporting affirmation dated 20 November 2024.

11.As aforementioned, at the oral hearing before this court, the applicant confirmed that there was nothing wrong with the Board’s Decision, all her problems had been presented to the Board, her problem had not been solved, her child was born out of wedlock and her family would not accept her. However, all these matters are not valid grounds for the intended judicial review at all.

Discussion

12.First of all, the applicant’s problems in Indonesia, including that she has a child born out of wedlock and the problems arising from it, 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.

13.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).

14.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.

15.As can be seen from the Board’s Decision, the Board had analyzed the applicant’s evidence and discussed the applicant’s credibility in paragraphs 45 to 60 of the Board’s Decision, and it is not necessary to repeat the same here.

16.In gist, the Board found that the applicant’s lack of evidence in support of her case and the contradictions and implausibilities in her accounts rendered the Board to reject her evidence.

17.Nevertheless, despite its findings on the applicant’s credibility, the Board still went on to consider the various grounds upon which the applicant’s case was based.

18.Even on the applicant’s account, the Board found that the applicant’s disputes with both her creditor and her father were private matters. The element of official capacity in the applicant’s fear could not be established. The creditor had never caused any physical harm to the applicant and her family members. The applicant’s father had always been protective to her. The Board found that there were no substantial grounds for believing that the applicant would suffer severe ill-treatment, serious harm or death from her creditor or her father upon refoulement.

19.Significantly, this court notes that the Board had discussed the availability of state protection to the applicant and found that effective state protection was available to the applicant (see paragraphs 77 to 83 of the Board’s Decision).

20.Moreover, the Board had given full reasons in paragraphs 84 to 87 of the Board’s Decision for its conclusion that safe internal relocation was possible for the applicant, and she would have no difficulty in securing a reasonable job and settling herself in different parts of Indonesia.

21.Thus, the Board found that the applicant was unable to make out her claims for non-refoulement on all the applicable grounds under the USM.

22.The finding of facts, including the assessment of evidence and risk of harm, was primarily within the realm of the Board in dealing with her appeal/petition. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

23.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.

24.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

25.For reasons aforesaid, the Leave Application is dismissed.

Dated the 16^th day of September 2026

( Gladys LEE )
for Registrar, High Court

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

Notes for the applicant: If leave has been granted, the applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent/Handed to the applicant/the applicant’s solicitors on: 16/09/2026 Applicant’s ref. no: Nil		Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 16/09/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 23210 Director of Immigration Putative interested party’s ref. no.: QA T/C 186/24 (formerly RBCZ 5000200/24) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)