Ernawati v. Torture Claims Appeal Board
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HCAL 2741/2025 [2026] HKCFI 5149 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2741 OF 2025 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 11 December 2025, 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 6 October 2025 (“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 failed on all 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 6 May 2025 (“the Director’s Decision”) and confirmed the same, which rejected her non-refoulement claim. Amendments 3.The applicant named “Torture Claims Appeal Board / Non-Refoulement Claims Petition Office” as both the putative respondents and the putative interested parties in Form 86, when only the Board should be the putative respondent, and the Director should be the putative interested party. 4.The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a party at all. 5.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”. The applicant’s case 6.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. 7.In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed or even killed by her ex-boyfriend/ex-fiancé named Endra Gunawan (“Endra”), as she had another boyfriend in Hong Kong. 8.The applicant also claimed that she was pregnant without being married, and caused embarrassment to her own family. At the Board’s hearing, the applicant confirmed that she would also rely on the grounds that she did not want to cause embarrassment to her family due to her pregnancy out of wedlock, and the fact that her family did not accept her relationship with a Hong Kong resident, as her grounds of appeal against the Director’s Decision. Oral hearings 9.The applicant requested for an oral hearing of the Leave Application and her case was first heard on 16 July 2026. However, the applicant was absent at the hearing. 10.Thereafter the applicant sent a letter dated 21 July 2026 to this court requesting for another hearing. In the said letter, the applicant explained that as red rainstorm warning was hoisted on the day of the scheduled hearing and it was inconvenient for them to bring their child to attend the hearing, she requested for another hearing. 11.The applicant’s request was acceded to by this court, and another hearing was scheduled on 20 August 2026. However, the applicant was again absent on that day. 12.The applicant sent an undated letter to this court after the second hearing and explained that her daughter was having light fever on 20 August 2026 and kept crying. Hence, she was unable to bring her to attend the hearing. She again asked this court to grant her another hearing, which was acceded to by this court. 13.At the resumed hearing on 3 September 2026, the applicant was present. 14.As the applicant had on 11 May 2026 filed a summons requesting to submit a certificate of marriage and indicated that she was waiting for independent [sic] visa, this court first asked the applicant for the purpose of the summons. 15.The applicant confirmed that the purpose of the summons was to show this court that she is now married to a Hong Kong resident and has a daughter with her husband in Hong Kong. The applicant said that she had applied for a dependent visa online but her application was rejected because she could not provide her passport. She confirmed that her daughter is also a Hong Kong resident. 16.This court then explained to her that the summons was irrelevant to the Leave Application, which was dealing with her challenge against the Board’s Decision regarding her non-refoulement claim. However, the applicant insisted that her summons should be dealt with by this court. 17.As to the grounds for the applicant’s judicial review, she merely said that she was threatened and she could not go back to her country because she has a child here. Grounds for judicial review 18.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). 19.The applicant did not advance any grounds for the intended judicial review in Form 86. 20.In her supporting affirmation dated 11 December 2025, the applicant only mentioned that she did not want to go back to Indonesia because her life and her kid’s life were in danger, her ex-fiancé would kill her as she did not marry him, and she was already married in Hong Kong and had a kid. 21.As aforesaid, the applicant only mentioned at the oral hearing before this court that she was threatened and she could not go back to her country because she has a child here. Discussion 22.First of all, this court will deal with the applicant’s said summons filed on 11 May 2026 and supported by her affirmation dated 11 May 2026. 23.As aforesaid, the applicant confirmed that the sole purpose of the summons was to prove that she is married in Hong Kong to a Hong Kong resident and has given birth to a daughter here. However, the fact that she has a family here in Hong Kong is simply irrelevant to the Leave Application. 24.As held by the Court of Final Appeal in Comilang & Ors v Director of Immigration [2019] HKCFA 10, family unity rights were not a bar to refoulement of foreign nationals without a right of abode, even when they have a spouse and children who are permanent residents of Hong Kong. Thus, separation with her husband and daughter was not a basis on which the applicant could establish her non-refoulement claim. 25.As it would not be relevant to her non-refoulement claim by adducing the documents mentioned in the said summons and her affirmation dated 11 May 2026, this court is not prepared to admit those documents and hence the said summons is dismissed. 26.As to the danger that the applicant faced from her ex-boyfriend/ex-fiancé, 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. 27.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). 28.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review. 29.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 27 August 2025. The applicant was present and hence she was given the chance to present her case to the Board in person. 30.As can be seen from the Board’s Decision, the Board had discussed the applicant’s risk from Endra with her at the Board’s hearing. The applicant agreed that despite being disappointed and angered by the fact that the applicant had given birth to a child in Hong Kong and was going to get married soon, Endra did not make any further threats and had accepted these facts. In the circumstances, the threat from Endra had been solved (see paragraph 25 of the Board’s Decision). 31.Moreover, the Board found no evidence to suggest that the embarrassment the applicant might cause her family due to her pregnancy out of wedlock, and the fact that her family did not accept the applicant’s marriage, would cause a real risk of harm to the applicant. 32.Thus, the Board considered that the risk the applicant faced from Endra and her family was low. 33.Nevertheless, the Board did go on to consider that if the applicant returned to live in her home and assuming that Endra would still harm or kill her due to the applicant’s refusal to reunite with him, the applicant might not be able to obtain timely state protection. The Board thus went on to consider viability of internal relocation for the applicant, and had given full reasons in paragraphs 36 to 41 of the Board’s Decision for its conclusion that it would not be unreasonable or unduly harsh for the applicant to relocate within Indonesia to avoid any perceived risk from Endra. 34.Thus, the Board found that the applicant was unable to make out her claims for non-refoulement protection on any of the applicable grounds under the USM. 35.The finding of facts relating to a non-refoulement claim, including the assessment of evidence, country of origin information 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 conclusion. 36.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. 37.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 38.For reasons aforesaid, the summons filed on 11 May 2026 and the Leave Application are both dismissed. Dated the 16th 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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