Case Document

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HCAL 1092/2023

[2026] HKCFI 5561

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1092 OF 2023

BETWEEN

	Ana Yuliati	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 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/HCAL001092_2023_files/the_Board's_Decision.pdf

2.The Board rejected the applicant’s non-refoulement claim as not substantiated on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 31 October 2022, which rejected her 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 a loan shark named Mr S, from whom her husband used her name to borrow 15 million Indonesian Rupiah without her consent, as she could not repay the loan.

Oral hearing

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

6.When this court asked the applicant to elaborate on the grounds of her intended judicial review which were stated in her supporting affirmation dated 5 July 2023, she merely confirmed that she would rely on them and said that her country and her family could not protect her.

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 advance any grounds for the intended judicial review in Form 86.

9.In her supporting affirmation dated 5 July 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 under the heading “GROUNDS FOR JUDICIAL REVIEW”. The grounds are summarised as follows:-

(1)  The adjudicator did not consider her claim;

(2)  The adjudicator did not accept her documents as the documents were in her mother language;

(3)  The officer refused to give her time to translate the documents because he had no time;

(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 the grounds stated in her affirmation and that her country and her family could not protect her.

Discussion

12.First of all, the applicant’s danger in her country 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.

13.In fact, the applicant’s claim for non-refoulement protection was rejected because the Board did not consider that the applicant faced a real risk of any of the proscribed harm from Mr S if she was refouled to Indonesia. In other words, the Board found that applicant did not face any risks as claimed, and hence there was no need to consider state protection. Thus, the applicant’s assertion at the oral hearing, namely that her country and her family could not protect her, cannot be a valid ground to challenge the Board’s Decision.

14.All the grounds (except ground (6) which is not a ground at all) that were contained in the applicant’s supporting affirmation 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.

15.She did not state: (1) how the adjudicator did not consider her claim; (2) which part(s) of her claim was not considered; (3) what documents she intended to submit were rejected as they were not translated; (4) how the interpreter or translator’s attitude had prejudiced her; and (5) what she wanted to tell the Board was not presented because of the attitude of the interpreter or translator.

16.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”.

17.Thus, the general assertions that were contained in the applicant’s affirmation cannot help her at all.

18.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).

19.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.

20.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 22 May 2023 and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person.

21.As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. The Board’s findings and assessment of the applicant’s claims were laid out in paragraphs 28 to 43 of the Board’s Decision, and it is not necessary to repeat the same here.

22.In gist, the Board found that the applicant was inventing answers to its questions due to the many inconsistencies and contradictions in the applicant’s evidence related to her contact with her family and change of her mobile phone numbers. The Board also found significant internal inconsistencies within the applicant’s claims in her Non-refoulement Claim Form and her evidence at the Board’s hearing. The Board considered that the applicant’s significant delay in making her non-refoulement claim further undermined her credibility.

23.Due to the multiple, material inconsistencies and implausibilities in the applicant’s evidence together with her non-persuasive explanations and her making new claims at the Board’s hearing, the Board found that the applicant was not a credible witness. The Board rejected: (1) the applicant or her husband owed any money to Mr S; (2) Mr S had ever threatened the applicant; (3) the applicant lost contact with her parents or husband or children; and (4) the applicant overstayed in Hong Kong for fear of harm from Mr S. The Board considered that the applicant had fabricated her claims to create a basis upon which to apply for non-refoulement protection.

24.Thus, on the evidence before it, the Board did not consider that the applicant faced a real risk of any of the proscribed harm from Mr S if she was refouled to Indonesia, and rejected her non-refoulement claim as not substantiated on any of the applicable grounds under the USM.

25.Although the Board did not consider state protection and internal relocation, it was unnecessary to make findings on the availability of state protection as the Board found that the applicant did not face any real risk of harm.

26.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).

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

28.The finding of facts, including the assessment of evidence and risk of harm, was primarily within the realm of the Board in dealing with her appeal/petition. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

29.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.

30.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

31.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 the applicant’s 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 21155 Director of Immigration Putative interested party’s ref. no.: QA T/C 998/22 (formerly RBCZ/5000859/22) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)