Pipi-pijarwanti v. Torture Claims Appeal Board
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HCAL 2231/2023 [2026] HKCFI 5562 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2231 OF 2023 BETWEEN
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 12 December 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 10 November 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant had failed to establish a case for non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board dismissed her appeal/petition against the decision of the Director of Immigration (“the Director”) dated 23 June 2023 (“the Director’s Decision”) and confirmed the same, which rejected the applicant’s non-refoulement claim. Amendment 3.In Form 86, the applicant named “To Claim appeal Board Non-refoulement Claim Petition Office” as the putative interested party, when the Director should be so named. 4.Thus, this court makes an order on its own motion to amend the name of the putative interested party to “Director of Immigration”. The applicant’s case 5.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. 6.In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed or killed by her creditor, Dadan, as she could not repay her debt borrowed from the creditor. Oral hearing 7.The applicant requested for an oral hearing of the Leave Application, and her case was heard on 24 September 2026. 8.When this court asked the applicant to elaborate on the grounds of her intended judicial review, which were contained in her written submission annexed to her 2nd supporting affirmation dated 2 July 2026, she merely replied that she was afraid of going back to her country, her life was in danger and no one could help her and her family. Grounds for judicial review 9.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). 10.The applicant did not identify any ground for the intended judicial review in Form 86. 11.In her 1st affirmation dated 12 December 2023, the applicant mentioned that she was really scared to go back to Indonesia because she could not repay her debt borrowed from Dadan, who always went to her parent’s home and said that he would kill her when he found her, and that was the reason why she lost contact with her family and her family members were in even worse condition. 12.In the applicant’s written submission annexed to her 2nd supporting affirmation dated 2 July 2026, the applicant made some general accusations against the Board. These general accusations were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations. The applicant is no exception. Nevertheless, as the applicant is relying on those grounds to make the Leave Application, this court will still deal with the grounds as discussed below. 13.As aforesaid, the applicant did not elaborate on any of the grounds stated in her written submission at the oral hearing, and she only added that her life was in danger and no one could help her and her family. Discussion 14.This court will first deal with the applicant’s 1st affirmation dated 12 December 2023. In the said affirmation, the applicant only reiterated the basis of her non-refoulement claim, ie her fear of her creditor as she could not repay the debt she owed him. 15.However, the applicant’s danger from her creditor 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. 16.The applicant’s reiteration of her danger in her own country at the oral hearing before this court cannot help her either. 17.As aforesaid, the contents of the applicant’s written submission annexed to her 2nd supporting affirmation dated 2 July 2026 were all very general. Some of the grounds therein 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). This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision. 18.There are a total of 14 paragraphs numbered 1 to 13 (two of which were with identical contents and both numbered as paragraph 3) in the said written submission. 19.Paragraph 1 is only the applicant’s self-introduction. In paragraph 10, the applicant just mentioned that the Board’s Decision contained all the details of her claim. Thus, paragraphs 1 and 10 are not grounds for judicial review at all. 20.Paragraphs 5, 6, and 8 were directed at the Director. Hence, they could not be used to challenge the Board’s Decision and can be simply ignored. Therefore, only paragraphs 2, 3, 4, 7, 9, 11, 12 and 13 are relevant to the Leave Application. 21.In paragraph 2, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test. However, the applicant did not state how or why the Board’s Decision was wrong, unfair and unreasonable. 22.It does not help the applicant to establish any ground by just mentioning the right to life in paragraphs 3 and 4 either. In any event, the Board did assess the applicant’s risk of right to life and concluded that the applicant faced no BOR 2 Risk[1] if refouled, as there was no evidence whatsoever that any circumstance would subject the applicant to any risk of death penalty or genocide in her home country, and the Board found that reasonable state protection was available to any risk of life deprivation by non-state actors (see paragraph 57 of the Board’s Decision). 23.In paragraph 7, the applicant alleged that the adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on country of origin information (“COI”) but failed to take her personal background and experience into account. However, the applicant did not state which aspects of her personal background and experience had not been taken into account by the Board. 24.In paragraph 9, the applicant simply alleged that the adjudicator ought to allow the appeal/petition and the Board’s Decision was irrational. There were no particulars or reasons given to say how or why the Board’s Decision was irrational. 25.In paragraph 11, the applicant complained that the Board’s Decision was unreasonable or irrational in the public law sense or was a result of procedural errors or unfairness. Again, the applicant did not specify how or why the Board’s Decision was unreasonable or irrational, or how the Board had committed procedural errors or unfairness in the determination of her claim. 26.In paragraph 12, the applicant alleged that the Board relied on some web news which were not officially recognized, there was no proper investigation on her claims, and hence her claim was not determined fairly. However, the applicant did not state which pieces of web news that the Board relied on were not officially recognized. She also failed to point out which part of her claim was not properly investigated, or why her claim was not determined fairly. 27.Lastly, in paragraph 13, the applicant stated that she requested this court to re-consider her case, and she attached some of her documents that were submitted to the Director and the Board which she considered were not properly investigated. She also accused the Board for rejecting her claim as quickly as possible. However, there was no document attached to the said written submission or the applicant’s 2nd affirmation as alleged. 28.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). 29.Thus, the applicant cannot ask this court to re-assess her non-refoulement claim. There was also no evidence that the Board did not properly investigate her claims and only tried to dispose of her case as quickly as possible. 30.It is therefore this court’s view that none of the matters raised by the applicant in her 1st affirmation, the said written submission or at the oral hearing before this court can amount to any valid grounds to challenge the Board’s Decision. 31.Nevertheless, despite the lack of any valid ground being advanced by the applicant for the intended judicial review, this court will still examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality as aforesaid. 32.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 19 October 2023 and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person. 33.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. 34.The Board had laid out its assessment of the credibility of applicant’s claims in paragraphs 34 to 37 of the Board’s Decision, and it is not necessary to repeat the same here. 35.In gist, the Board found that the applicant had only made bare assertions and provided no objective proof of her assertions. There were material facts and information provided by the applicant which the Board found implausible or unreliable and affected adversely the applicant’s credibility and the reliability of her evidence. The creditor had not physically harmed the applicant and her family. The Board considered that the alleged mistreatments by the creditor did not reach the minimum level of severity required for international protection. 36.On the totality of evidence, the Board was not convinced that the applicant overstayed in Hong Kong because of the alleged threat to kill or harm her by the creditor. The Board found that the centerpiece of the applicant’s story did not stand, the applicant was dishonest and unreliable, and was not a genuine non-refoulement claimant. 37.On top of its findings as summarised above, the Board also found from COI that despite setbacks, the Indonesian government was taking action against corruption. The Board did not accept that state protection would not be available to the applicant against the alleged threat of harm from the creditor (see paragraphs 47 to 48 of the Board’s Decision). 38.Moreover, the Board found that internal relocation was a viable alternative to the applicant, and had given full reasons in paragraphs 67 to 71 of the Board’s Decision for such a finding. 39.Thus, the Board found that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds under the USM. 40.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. 41.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. 42.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 43.For reasons aforesaid, the Leave Application is dismissed. Dated the 30th 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 [1] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. |
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