Tarti v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1829/2023

[2026] HKCFI 5529

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1829 of 2023

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 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 Levy:

The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 12 October 2023, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decisions of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 6 October 2023 (“Board’s Decision”) dismissing the applicant's appeal against the decisions of the Director of Immigration (“Director”) dated 24 August 2022 rejecting the applicant's non-refoulement claim on the applicable grounds[1]. The Board’s Decision can be viewed at the following hyperlinks: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001829_2023_files/the_Board's_Decision.pdf

2.The basis of the applicant’s claim was that, if refouled to Indonesia, she would be harmed or killed by (1) the creditor for an outstanding loan of which the applicant acted as a guarantor; (2) her husband due to her lesbian orientation. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

3.Pursuant to the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 24 September 2026. A notice of hearing with a reminder[2] of the consequence of absence dated 2 September 2026 was sent to the applicant’s last known address by ordinary post. The applicant was absent from the hearing. Before the hearing, phone calls were made to the applicant’s given telephone number before the hearing but to no avail. Since the information before this court shows that the said notice of hearing has not been returned undelivered through the post, this court will dispose of the Leave Application according to the materials already placed before the court.

Discussion

4.A leave application operates as a “filtering” process. Hence, there is no requirement or expectation to give elaborate reasons for my decision.[3] It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

5.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[4], and further to make full and frank disclosure of all material facts to be verified by an affidavit. In her Form 86 no such grounds were provided. In the supporting affirmation, the applicant made allegations in relation to some un-translated documents that the Board allegedly refused to accept, and the conduct of the interpreter.

6.As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[5]  In the present case, the Board accepted that the applicant acted as the guarantor for the husband’s loan. However, it found that the applicant would not be subjected to any risk of harm from the moneylender as there was no reliable evidence that the moneylender was still pursuing the applicant. As for the fear of harm form the husband, and even the family at large, the Board found that the evidence of the husband’s alleged death threats incredible and implausible. The Husband was found to have no real intention to kill or severely harm the applicant. The Board also found that there was no reliable evidence that her neighbour, family would harm or kill her for being a lesbian. Thus, the Board found that the applicant would not be subjected to risk of harm if refouled. The Board also found that reasonable state protection and internal relocation would be available.

7.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The applicant’s grounds raised in the supporting affirmation are general and vague. Hence, they cannot constitute valid grounds. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[6].

Order

8.The applicant’s application for leave to apply for judicial review is dismissed.

Dated the 6^th day of October 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