Case Document

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HCAL 1048/2023

[2026] HKCFI 5550

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1048 OF 2023

BETWEEN

	Tri Martiningsih	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. 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 29 June 2023, 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 21 June 2023 (“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/2023/HCAL001048_2023_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s claim for non-refoulement protection in Hong Kong 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 September 2021 (“the Director’s Decision”) and confirmed the same, which rejected the applicant’s non-refoulement claim.

The applicant’s case

3.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.

4.In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed or killed by her father’s creditor. The applicant claimed that since her father could not continue to repay the debt to the creditor, the creditor requested her to assume the responsibility for her father’s debt. Upon knowing the applicant was unemployed, she was demanded by the creditor to marry him. However, the applicant refused. The creditor threatened to kill her or her father if she did not marry him upon her return to Indonesia.

Oral hearing

5.The applicant requested for an oral hearing of the Leave Application, and her case was heard on 24 September 2026.

6.The applicant confirmed that she would rely on the grounds stated in her supporting affirmation dated 29 June 2023 for her intended judicial review. When this court asked the applicant to elaborate on the said grounds, she merely replied that she had a loan in her country and she could not stay there.

Grounds for judicial review

7.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).

8.The applicant did not identify any ground for the intended judicial review in Form 86.

9.In her supporting affirmation dated 29 June 2023, the applicant first mentioned that she did not agree with the Board’s Decision, she had life threat in her country Indonesia, her enemy was a powerful man who never abided by the law and gave money to the police, the authority listened to him word for word, and that no one in society would help her.

10.The applicant then advanced 6 grounds for her intended judicial review under the heading “GROUNDS”. The grounds are summarised as follows:-

(1)  The Director did not give her lawyer;

(2)  Her two claims were different but the Director did not find any difference;

(3)  The Director had no common knowledge or he did not read the applicant’s claim because she specifically stated that there was significant change in her subsequent claim;

(4)  The translator did not help her at all and became angry if the applicant did not understand;

(5)  The interpreter asked her not to take long time for interview as he had another job; and

(6)  She asked the court to help her and save her life.

11.As aforesaid, at the oral hearing, the applicant only said that she would rely on what were stated in her affirmation and did not elaborate on any of the matters contained therein. She only added she had a loan in her country and she could not stay there.

Discussion

12.First of all, the applicant’s danger in her home country had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

13.As to the matters that were stated as “GROUNDS” in her supporting affirmation, the first 3 grounds were directed at the Director. As the Director’s Decision was superseded by the Board’s Decision, it is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). Therefore, it is not necessary for this court to deal with grounds (1) to (3).

14.Nevertheless, this court notes that ground (1) is simply untrue. The applicant was in fact assisted by a duty lawyer in the first phase of assessment of her non-refoulement claim (see paragraph 10 of the Board’s Decision).

15.Grounds (2) and (3) are plainly irrelevant. The applicant’s claim is not a subsequent claim, nor did she file two separate non-refoulement claims. It is clear that the applicant must have copied the grounds somewhere and simply used them as her own grounds without even considering whether the grounds were relevant to her circumstances.

16.Grounds (4) and (5) were directed at the Board in respect of the Board’s Decision, but they were asserted without any specificity. Many applicants in similar applications used them like a template without any regard to their own cases. The applicant is no exception.

17.The applicant did not state how the interpreter or translator’s attitude had prejudiced her; and what she wanted to tell the Board was not presented because of the attitude of the interpreter or translator.

18.The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.

19.Thus, the general assertions that were contained in grounds (4) and (5) cannot help the applicant either.

20.Ground (6) is just a plea to this court and not a ground at all.

21.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).

22.Thus, despite the lack of any valid ground being advanced by the applicant for the intended judicial review, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality as aforesaid.

23.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 12 January 2023 and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person.

24.As can be seen from the Board’s Decision, the Board had given a detailed analysis of all the aspects of the applicant’s claims and its reasoning in rejecting the applicant’s claim for non-refoulement protection.

25.The Board had laid out its assessment of the applicant’s claims in paragraphs 59 to 71 of the Board’s Decision, and it is not necessary to repeat the same here.

26.In gist, the Board found that the applicant’s case consisted mostly of bare assertions and hearsay with no objective proof. There was inconsistency with regards to the alleged debt recovery action taken by the creditor. The applicant’s assertion with regards to the large number of followers of the creditor, which was her reason for not being able to relocate internally, was pure hearsay. On the applicant’s evidence, the creditor only showed up by himself without any followers whenever he chased for repayment at her home. The Board found the applicant’s evidence in this regard highly speculative.

27.The Board accepted that the applicant’s father might have incurred loan, and that his creditor might have attempted to recover the debt at their family house. However, the Board rejected the applicant’s allegation that the creditor had demolished her family house, threatened her as claimed, or that she was in genuine fear of being harmed or killed by the creditor.

28.With regards to the assessment of the applicant’s claim on all the applicable grounds under the USM, the Board found that even if the applicant’s alleged fear and ill-treatment were accepted, her problems with her father’s creditor were purely personal matters. There was no evidence to suggest state acquiescence in the applicant’s case. The applicant and her father had never received any harm inflicted by the creditor. The Board was not satisfied that the alleged ill-treatment would reach the minimum level of severity required for international protection. The applicant’s claim was not related to any Convention reasons.

29.Further, in view of the country of origin information (“COI”) which the Board accepted, the Board considered that the applicant would be able to access state protection in respect of any harm threatened by others, if there was any.

30.Given its findings as summarised above, it was not strictly necessary for the Board to consider internal relocation for the applicant. Nevertheless, the Board did explicitly state its reasons in paragraphs 84 to 86 of the Board’s Decision for its view that given the applicant’s profile, it would not be unduly harsh for the applicant to relocate to other cities in Indonesia where she would not be easily located by anyone.

31.Thus, the Board found that the applicant had no real risk of any of the proscribed forms of harm upon her return to Indonesia.

32.The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

33.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 error 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.

34.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

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

Dated the 30^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: 30/09/2026 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: 30/09/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 18785 Director of Immigration Putative interested party’s ref. no.: QA T/C 1190/21(Formerly RBCZ 10456/21)(T2I118) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)