Case Document

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HCAL 1090/2023

[2026] HKCFI 5560

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1090 OF 2023

BETWEEN

	Supiarsih	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 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 putative respondent be amended to “Torture Claims Appeal Board”, and 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 5 July 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 29 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/HCAL001090_2023_files/the_Board's_Decision.pdf

2.The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board refused her appeal/petition against the decision of the Director of Immigration (“the Director”) dated 10 October 2022 and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendments

3.In Form 86, the applicant named the Board and the Director as the putative respondents, and the Board as the putative interested party.

4.In fact, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party.

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 killed by her husband, Sunarwan, and his creditors as she stopped sending money to him to repay debts to the creditors.

Oral hearing

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

9.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.

10.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

11.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).

12.The applicant did not identify any ground for the intended judicial review in Form 86, nor in her supporting affirmation dated 5 July 2023.

Discussion

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 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.

15.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 21 June 2023 and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person.

16.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.

17.The Board had laid out its assessment of the applicant’s claims in paragraphs 41 to 55 of the Board’s Decision, and it is not necessary to repeat the same here.

18.In gist, the Board accepted that the applicant and her husband argued about money and the applicant was required to send him some of her earnings. However, the Board did not accept that the applicant was harmed by her husband. The Board did not accept that the applicant would have failed to raise that she had been hit by her husband three times in 2020 and the Board considered it evident that the applicant was embellishing her claims during the Board’s hearing. The Board did not accept that the applicant had been truthful about her husband’s employment, and she had undoubtedly attempted to present him as lazy and a gambler for the purposes of her non-refoulement claim.

19.The Board considered that the applicant’s evidence in relation to her discovery about the loans owed by her husband as confused and inconsistent. The Board was of the view that the applicant’s evidence indicated that her husband had only been to her parents’ house to threaten them, no doubt to try to obtain money. The Board was not satisfied that the applicant genuinely believed that her husband intended to harm her upon her return to Indonesia and considered that her claims that he would do so were highly speculative.

20.More importantly, the Board considered that, even if the applicant had any fear of harm from the loan sharks or her husband, the applicant could relocate to another part of Indonesia and it would be reasonable and not unduly harsh for her to do so. The Board had given its reasons for such a finding in paragraphs 53 to 54 of the Board’s Decision.

21.Thus, the Board was not satisfied that there were substantial grounds or a real risk that the applicant’s husband or the loan sharks would inflict “black magic” or any harm amounting to torture, a risk to her life, cruel or inhuman treatment or punishment or persecution upon the applicant if she was returned to Indonesia.

22.The finding of facts, including the assessment of evidence 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.

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 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.

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 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 21072 Director of Immigration Putative interested party’s ref. no.: QA T/C 907/22 (formerly RBCZ/5000774/22) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)