Fahrunnisa Euis v. Torture Claims Appeal Board
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HCAL 2667/2024 [2026] HKCFI 5664 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2667 OF 2024 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 31 December 2024, 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 13 December 2024 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant’s claim for non-refoulement protection in Hong Kong failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 28 October 2024, which rejected her non-refoulement claim. Amendments 3.In Form 86, the applicant named “Torture claims APPeal Board Non-Refoulement claims Petition office” as the putative respondent, and “To Torture Claims APPeal Board Non-Refoulement claims Petition office” as the putative interested party. 4.In fact, the Board and the Director should be named as the putative respondent and the putative interested party respectively. 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.The applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be killed by a loan shark and his men as her husband borrowed money using her name and the loan had not been repaid. Withdrawal of the Leave Application 7.Before the Leave Application was dealt with, the applicant filed an ex parte application by way of her affirmation dated 10 September 2026 to cancel the Leave Application. However, she did not indicate that it was safe for her to return, nor her problems in her home country had been resolved. 8.There is no evidence to show that the applicant made the withdrawal application other than out of her own volition. With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing of the Leave Application even though she had previously requested one. 9.However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-
10.Thus, it is not right to leave the action at large. The applicant’s application to withdraw the Leave Application is therefore refused and this court will proceed to deal with the Leave Application. 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.However, the applicant did not advance any grounds for judicial review in Form 86, nor in her supporting affirmation dated 31 December 2024. She merely mentioned in the said affirmation that she did not want to go back to Indonesia, her life was in danger there because her loan sharks would kill her, she could not pay the debt, and she did not have money to pay the debt. Discussion 13.First of all, the applicant’s danger from her loan shark due to her inability to repay the debt 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. 14.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). 15.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. 16.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 3 December 2024 and the applicant was present. Thus, the applicant did have the opportunity to present her case to the Board in person. 17.The Board had laid out its assessment of the applicant’s credibility in paragraphs 27 to 32 of the Board’s Decision, and it is not necessary to repeat the same here. 18.In gist, the Board found that the applicant’s evidence at the Board’s hearing was generally vague, lacking in detail and inconsistent. The Board did not regard the applicant’s claims about the loan to be credible. Her claim was that the loan taken by her husband was in her name, yet she said that she was not present and that the money was paid directly to him and used by him. The loan was undocumented, and she had divorced her husband, who had remarried. Her claim at the Board’s hearing to have witnessed the transaction was found to be lacking in credibility. 19.The Board found that the applicant had failed to establish that she had any liability for such a loan, even if it were accepted that her ex-husband borrowed money. 20.More importantly, the Board found that even if the applicant’s claim to face harm because of her ex-husband’s loan should she return to her home village was accepted, the applicant could reasonably be expected to relocate to Jakarta or Surabaya, particularly given her experience living and working in Taiwan as well as in Hong Kong. 21.Thus, the Board found that the applicant had not established any substantial grounds to claim for non-refoulement protection under the USM. 22.The finding of facts, including the assessment of evidence and risk of harm, was primarily within the realm of the Board in dealing with the applicant’s 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. 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 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. 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 application to withdraw the Leave Application is refused and the Leave Application is dismissed. Dated the 7th 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
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