Case Document

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HCAL 1055/2023

[2026] HKCFI 5552

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1055 OF 2023

BETWEEN

	Reni Wahyuningsih	Applicant
	and
	Director of Immigration	1^st Putative
		Respondent
	Torture Claims Appeal Board	2^nd 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 the applicant being absent in open court;

Order by Deputy High Court Judge Michael WONG:

1.  On this court’s own motion, the name of the 1^st putative respondent be amended to “Director of Immigration”, the name of the 2^nd putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party, the 1^st decision in respect of which relief is sought be amended to “Director of Immigration’s decision dated 31 August 2022” and the 2^nd decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 23 June 2023”.

2.  The applicant’s application for leave to apply for judicial review in respect of Director of Immigration’s decision dated 31 August 2022 be dismissed.

3.  The applicant’s application for leave to apply for judicial review in respect of Torture Claims Appeal Board’s decision dated 23 June 2023 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 two decisions which were described as follows:-

“The decision of The immigration made on 15 March 2023. They reject My NON refoulement. The torture claim appeal board refused my Petition 23 June 2023.”

2.However, no decision regarding the applicant’s claim for non-refoulement protection was made on 15 March 2023.

3.The Torture Claims Appeal Board (“the Board”) made a decision dated 23 June 2023 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 31 August 2022 (“the Director’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001055_2023_files/the_Board's_Decision.pdf

4.The Board found that the applicant’s appeal/petition against the Director’s Decision failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.

5.The date of 15 March 2023 referred to by the applicant in Form 86 as mentioned above was the date of the Notice of Hearing issued to the applicant inviting her to appear before the Board for the Board’s hearing on 2 May 2023 (see paragraph 18 of the Board’s Decision). It is clear that the applicant made a mistake in respect of the date of the Director’s Decision.

Amendments

6.In Form 86, the applicant named “immigration department” as the 1^st putative respondent and the Board as the 2^nd putative respondent, but spelt its name wrong. In fact, the Director, instead of “immigration department”, should be named as the 1^st putative respondent.

7.The applicant did not name any putative interested party in Form 86, when the Director should be so named.

8.Thus, this court makes an order on its own motion to amend the name of the 1^st putative respondent to “Director of Immigration” and the name of the 2^nd putative respondent to “Torture Claims Appeal Board”, and to add “Director of Immigration” as the putative interested party.

9.As aforesaid, the 1^st decision in respect of which relief is sought in the Leave Application should be the Director’s Decision and the 2^nd decision in respect of which relief is sought in the Leave Application should be the Board’s Decision. Thus, they are so amended accordingly on this court’s own motion.

The applicant’s case

10.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.

11.In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed or killed by her ex-husband as revenge for divorcing him.

Oral hearing

12.The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 24 September 2026.

13.As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

14.Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

Grounds for judicial review

15.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).

16.The applicant did not identify any ground for the intended judicial review in Form 86. She only mentioned in Form 86 that she did not agree with the decisions made by the Immigration Department and the Board.

17.In her supporting affirmation dated 29 June 2023, the applicant mentioned that she did not agree with the Board’s Decision, and she needed sometime to provide some documents from her country Indonesia.

18.By way of a letter dated 13 June 2025 addressed to the registrar of this court, the applicant submitted the grounds for her intended judicial review in respect of both the Director’s Decision and the Board’s Decision.

Discussion

19.First of all, the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, [2018] HKCA 549). Thus, there is simply no merit to apply for leave to have judicial review in respect of the Director’s Decision. It is clear that the Leave Application in respect of the Director’s Decision should be dismissed.

20.Since she filed the Leave Application, the applicant did not submit any further documents from her country Indonesia as suggested in her supporting affirmation dated 29 June 2023, apart from the said letter dated 13 June 2025. In any event, the applicant cannot submit new evidence to this court in support of her non-refoulement claim.

21.The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.

22.Moreover, her 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.

23.Thus, all the matters raised by the applicant in Form 86 and her supporting affirmation cannot amount to any valid ground to challenge the Board’s Decision.

24.In the said letter dated 13 June 2025, the applicant first mentioned the reasons why she was scared to return to her country and that the Board’s assessment on her fear was too low and not acceptable. As aforesaid, the applicant’s risks had been assessed by the Board and her challenge on the Board’s finding of facts is not permissible in an application for judicial review.

25.Then, the applicant set out some general grounds under 8 paragraphs, which were numbered from 1 to 8 as follows:-

“1.. Procedural Impropriety) Failure to properly apply para national UN committee against Torture General Comment No.2 whereby satisfaction of a National states obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event, cf, the TCAB and the Director Decision which focused on whether such reliefs showed merely signs of positive improvement (see also JFK CACV 103/ 2014).

2 Procedural Impropriety) Failure to conduct sufficient inquiry into the relevant country of origin conditions. The TCAB Failure to consider that I would face serious risk from my enemies who will harm me because of my political and statistical view which consider a serious matter for which he would harm me upon refoulement. The TCAB completely failed to materialize my fear in my claims.

3. Procedural Impropriety/ Irrationality) Failure to reasons for assessment of Lack of BOR 2risk and / or sufficient basis to support conclusion of lack of BOR 2risk. I would like to review my decision under BOR 2 that my life is still at risk upon refoulement to my country of origin for which I would seek protection for my life.

4. Error/ Misdirection in law) Failing to consider the considerations of psychological strain and threats to me personally or threats to me directly to kill me. My enemies are still looking for me, my risk of my life continues so in this circumstance I would not dare to return to my country. It’s only because of fear for my life.

5. Procedural Impropriety) The TCAB Failure to consider our fear that my enemies still fear for me, I could not return to my country in this circumstance, therefore there are genuine risks waiting for me, and I could not relocate other places because they could easily trace me wherever I hide in my country.

6. Misdirection in law) The TCAB failure to assess my fear and my country-of-origin conditions that whereas I would return I would not face a terrible risk upon refoulement, my life is under risk from my enemies so that I would not agree to the decision of the Director so that I would review my decision.

7. No sufficient basis to conclude that my family members would not to be at risk of being subjected to torture and or / CIDTP upon refoulment. Although my non-refoulement claim assessed under Torture risk, BOR 2 & 3 risk and risk of persecution.

8. Against the Director decision) Procedural Impropriety) Insufficient inquiry into the country-of-origin conditions and / or failure to appropriately examine purportedly objective country of origin information materials.”

26.In paragraphs 1 and 2 of the grounds as quoted above, the applicant challenged the Board’s consideration of “UN committee against Torture General Comment No. 2” and “the relevant country of origin conditions”. However, the applicant did not give any particulars of such challenges which were relevant to her case. The applicant also mentioned in paragraph 2 that her enemies would harm her because of her political and statistical view. However, her case was only concerning her ex-husband taking revenge on her for divorcing him. It had nothing to do with her political and statistical view.

27.Paragraphs 3, 4 and 6 of the grounds concern the applicant’s risk of life, but they have no merits at all. The Board had considered the law about BOR 2 Risk (as mentioned in paragraph 14 of Appendix A attached to the Board’s Decision) and all the materials contained in the hearing bundle and the responses and evidence provided by the applicant at the hearing (see paragraph 15 of Appendix A attached to the Board’s Decision). As can be seen from paragraph 89 of the Board’s Decision, the Board in fact gave the applicant the benefit of the doubt and proceeded on the basis that on two occasions her ex-husband pointed a small knife at the applicant and threatened to kill her after hearing that she wanted a divorce. However, the Board found that this was nothing more than menacing threat without a serious intention. In fact, the applicant’s own evidence was that her ex-husband eventually did not harm her. Thus, the Board did consider the applicant’s risk of life and give sufficient reasons for its conclusion that BOR 2 Risk was not substantiated.

28.Paragraph 5 of the grounds concerns internal relocation. However, the Board did not consider the question of internal relocation at all, as it was not necessary for it to do so when it had found that the applicant did not face a real risk of harm of any serious kind if she returned to her home area (see paragraph 105 of the Board’s Decision). Thus, paragraph 5 is simply irrelevant.

29.Paragraph 7 of the grounds is also irrelevant as the Board did not conclude that the applicant’s family members would not be at risk of being subjected to torture and or / CIDTP upon the applicant’s refoulment. In fact, it was the applicant herself who confirmed that her ex-husband had not harmed her parents or her child (see paragraph 63 of the Board’s Decision), and the Board just considered the applicant’s claim that her ex-husband did not harm anyone from her family (see paragraph 90 of the Board’s Decision).

30.Paragraph 8 of the grounds is directed at the Director. As aforesaid, the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review. Thus, it is unnecessary to consider whether there was any failure on the part of the Director.

31.Moreover, 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”. Thus, the general allegations contained in the aforesaid grounds cannot amount to any valid grounds for the intended judicial review in respect of the Board’s Decision.

32.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).

33.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.

34.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 2 May 2023 and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person.

35.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.

36.The Board had laid out its assessment of the applicant’s claims in paragraphs 80 to 97 of the Board’s Decision, and it is not necessary to repeat the same here.

37.In gist, the Board accepted significant parts of the applicant’s claims, including that her ex-husband had slapped and mistreated her in the past, her husband had taken out a loan and that he opposed to the applicant’s request for divorce. However, the Board also found that the applicant had inflated and exaggerated important aspects of her claims in relation to her claimed risk of harm. The Board found that the applicant’s conduct had been significantly inconsistent with the conduct of a person who claimed to have a genuine and grave fear of being seriously harmed or killed when faced with the prospect of being returned to her home country. In particular, the applicant’s failure to report her claimed mistreatment by her ex-husband to the police or to her parents, and her delay and failure to seek protection after arriving in Hong Kong, was inconsistent with the conduct of a person who held a genuine fear of serious or fatal harm.

38.While accepting that the applicant wanted to distant herself from her ex-husband, the Board did not accept that the applicant wanted to avoid him for fear of facing a real risk of serious or fatal harm at his hands. The Board also accepted that the applicant’s ex-husband had mistreated her in the past. Nevertheless, the Board found that such mistreatment by him was not serious or life-threatening.

39.In relation to the applicant’s claim that her ex-husband refused whenever she requested for a divorce, the Board accepted that he had his reasons for opposing the divorce, and the continuation of the remittances from the applicant’s overseas employment could very likely be one of those reasons. However, the Board did not find it suggesting that the applicant’s ex-husband would now, or in the reasonably foreseeable future, target the applicant for serious or fatal harm.

40.Despite that applicant’s claim that her ex-husband had on two occasions pointed a small knife at her and threatened to kill her, the Board accepted the applicant’s evidence that he eventually did not harm her. The applicant’s ex-husband had also never harmed anyone from the applicant’s family, notwithstanding that he went to visit the applicant’s family periodically to ask for her whereabouts.

41.Based on all the evidence before it, including the totality of the evidence on the conduct of the applicant’s ex-husband, the Board rejected the proposition that there was a real risk of harm facing the applicant on that basis. The Board found that although the applicant’s ex-husband might have opposed to the divorce initially, there was no credible evidence to suggest that he had not accepted the reality that the divorce had been granted. The Board did not find that the evidence suggested that any residual grudge which the applicant suggested her ex-husband might feel was such that it would motivate him to seriously harm or to kill the applicant.

42.With regards to the assessment of the availability of state protection to the applicant, the Board found that there was nothing more than the applicant’s speculation that the police would not intervene if she needed their protection. Having carefully considered all the country of origin information (“COI”) available, the Board considered that the applicant did have access to adequate police protection in the remote circumstance that she should require it in relation to the conduct of her ex-husband if she returned to Indonesia (see paragraphs 98 to 104 of the Board’s Decision).

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

44.Although the Board did not make findings as to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755).

45.As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

46.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.

47.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.

48.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

49.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 2^nd Putative respondent’s ref. no.: USM 20914 Director of Immigration 1^st Putative respondent and Putative interested party’s ref. no.: QA T/C 777/22 (Formerly RBCZ/5000663/22) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)