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

HCAL 2297/2023

[2026] HKCFI 5291

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2297 of 2023

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 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 Andrew Li:

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

Observations for the Applicant:

INTRODUCTION

1.By a Form 86 filed on 20 December 2023 (“the Form 86”), the applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (“the Board”) dated 14 December 2023 (“the Board’s Decision”), which affirmed a decision by the Director of Immigration (“the Director”) dated 14 September 2023 in refusing the applicant’s non‑refoulement protection claim.

2.The applicant requested for a hearing and she attended the same. However, when asked if she has anything to add besides the matters stated in her application, the applicant said she could not remember much about the grounds. After the court reminded her the grounds, the applicant said she has nothing else to add.

BACKGROUND

3.The applicant is a national of Indonesia. She seeks non-refoulement protection on the basis that if she is refouled, she would be harmed or even killed by her husband. Her personal background, the relevant facts and relevant procedural history have been sufficiently set out in the Board’s Decision, which can be accessed through a hyperlink[1]. I shall not repeat the same here.

DISCUSSION

4.In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the Board is required given the seriousness of the issue at hand, this court should not usurp the role of the Board, which together with the Director are the primary decision-makers. This 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 (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

5.In the affirmation filed in support of the application, the applicant has specified the following grounds: -          

(1)  The duty lawyer at the screening interview at the Immigration Department did not really assist her;

(2)  The Board did not truly consider her claim and had dismissed her claim before hearing her oral arguments; and

(3)  The Board was not neutral.

6.Insofar as the above purported ground of review (Ground (1)) was made against the Director, it has been held that the Director’s decision is not susceptible to judicial review once an appeal to the Board had been pursued: See Re Raschpal Singh [2020] HKCA 978, per Lam VP (as he then was) at §§40-41. Thus, there is no need for me to consider them. I only need to consider the Board’s Decision.

7.Looking at the Board’s Decision, the Board bore in mind the correct legal principles in respect of each of the four applicable grounds under the USM [3-14], the principles of surrogacy [15-16], burden of proof [17] and real chance of harm [18-20].

8.Contrary to the applicant’s allegation, the Board took into consideration of the applicant’s case and evidence [22-26]. Having carefully assessing her credibility [30-36], the Board came to the conclusion that the applicant was not telling the truth [37]. The Board considered that there is not a genuine and substantial risk that the applicant will be killed or harmed by her husband [40-41].

9.After thoroughly analysing and assessing the above, the Board came to the findings and conclusions that none of the grounds was made out [47-56]. The Board also considered that the option of internal relocation was available to her [57-59].

10.Having looked at the Board’s Decision carefully, I am not able to find the Board has failed to consider any of the matters raised by the applicant in her claims and/or failed to provide any adequate reason in its decision. In particular, I cannot see any grounds to say that the Board had failed to give her a chance to fully present her case before dismissing her appeal. There is also no basis for the applicant to suggest that the Board was being bias and not neutral.

11.Despite rigorous examination and anxious scrutiny, I could not find any errors of law, procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable and has no realistic chance of success.

CONCLUSION

12.For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

Dated the 24^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