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

HCAL 711/2023

[2026] HKCFI 5573

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 711 of 2023

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

	consideration of documents only;   or
	consideration of documents and the Applicant being absent in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Sabrina Ho:

1.  The Form 86 be amended by naming the Director of Immigration as the putative interested party.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 15 May 2023 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the Decision of the Torture Claims Appeal Board / Non refoulement Claims Petition Office dated 8 May 2023 (the “Board”, the “Board’s Decision”).

2.In the Form, the Applicant named the Board as an interest party. I will amend the Form on my own motion to name the Director of Immigration (the “Director”) as the putative interested party instead.

3.In the Affirmation in support of the Leave Application (the “Affirmation”), the Applicant exhibited a copy of the Board’s Decision and stated that her life is in danger due to a loan shark in Indonesia, and that her husband always beat her in Indonesia.

4.The Applicant requested an oral hearing for the Leave Application. The hearing took place on 18 June 2026 (the “Hearing”) but the Applicant was absent. Notice of Hearing was issued to the Applicant in advance at the Applicant’s address provided by the Immigration Department on 27 February 2026. The said Notice has not been returned as undelivered.

5.I take the view that sufficient notice had been given to the Applicant in respect of the Hearing. I will proceed with the Hearing in the absence of the Applicant.

Background

6.The Applicant’s background, the basis of her claim and the arguments she advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference.

Discussion

7.Aside from stating that her life is still in danger as the loan shark whom she owes money to would kill her if she returns to Indonesia and that her husband always beats her, the Applicant has not identified any ground in support of the Leave Application, whether in the Form or the Affirmation.

8.The relevant legal principles are well established. The Court’s role in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: see Nupur Mst v Director of Immigration [2018] HKCA 524 at para. 14; Re Limbu Birkhaman [2019] HKCA 50 at para. 11. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: see Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

9.Having considered all the relevant materials before me, I do not consider the Applicant’s intended challenge against the Board’s Decision to be reasonably arguable with any realistic prospect of success.

10.I have reviewed the Board’s Decision in detail. The Board had fully considered the Applicant’s evidence and her grounds for challenging the Director’s decision in refusing her claim for non-refoulment protection. The Board found the Applicant’s account on loan shark and domestic violence inconsistent. While accepting that the Applicant might have been subjected to domestic violence in the past, the Board found that the Applicant’s husband had never threaten to harm her upon her return, and the husband’s creditor never approached her for repayment of her husband’s debt: see the Board’s Decision paras. 63-68. The Board further found that the Applicant would be able to access to state protection and there are viable internal relocation options available to her: see the Board’s Decision paras. 80-85. On the above bases, the Board found that the Applicant has failed to show that she would face any Persecution Risk, BOR 2 Risk, BOR 3 Risk or Torture Risk[2] if she returns to Indonesia and rejected the Applicant’s appeal: see the Board’s Decision paras. 70-86. I do not consider there to be any error of law, procedural unfairness or irrationality in the Board’s Decision.

11.The Applicant’s complaints in her Affirmation have already been considered and rejected by the Board in the Board’s Decision, see paragraph 10 above.

12.Leave application of this sort is meant to be a filtering process and this Court is not expected to give elaborated reasons for its decision: see Re Zunariyah [2018] HKCA 14 at para. 23. I have considered all the relevant materials in reaching the present decision.

Conclusion

13.For the reasons stated above, I will dismiss the Leave Application.

Dated the 9^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