Case Document

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HCAL 2274/2024

[2026] HKCFI 5793

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2274 OF 2024

BETWEEN

	Dewi Pratnawati	Applicant
	and
	Torture Claims Appeal Board	1^st Putative
		Respondent
	Director of Immigration	2^nd 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 or counsel in open court;

Order by Deputy High Court Judge Michael WONG:

1.  On this court’s own motion, the name of the 1^st putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration”, and the decisions in respect of which relief is sought be amended to “Director of Immigration’s decision dated 18 July 2024 and Torture Claims Appeal Board’s decision dated 6 November 2024”.

2.  The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

3.  The applicant’s application for leave to apply for judicial review in respect of both the Director of Immigration’s decision dated 18 July 2024 and the Torture Claims Appeal Board’s decision dated 6 November 2024 be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 27 November 2024, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:-

“18-July-2024, MY claim is Refused.”

2.In Form 86, the applicant named Torture Claims Appeal Board (“the Board”) as the 1^st putative respondent (but spelt its name wrong) and Director of Immigration (“the Director”) as the 2^nd putative respondent. The decision dated 18 July 2024 referred to by the applicant in Form 86 was in fact the decision made by the Director in respect of the applicant’s non-refoulement claim (“the Director’s Decision”). However, the applicant filed an appeal/petition to the Board against the Director’s Decision on 25 July 2024. The Board rejected the applicant’s appeal/petition by way of its decision dated 6 November 2024 (“the Board’s Decision”).

3.As the applicant had named the Board as a putative respondent and stated in Form 86 that she was seeking judicial review for her non-refoulement claim, this court will treat the Leave Application as against the Board’s Decision as well.

4.The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL002274_2024_files/the_Board's_Decision.pdf

5.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 rejected the applicant’s appeal/petition against the Director’s Decision and confirmed the same, which rejected her non-refoulement claim.

Amendments

6.As aforesaid, the applicant stated in Form 86 that the Director’s Decision was the decision in respect of which relief is sought in the Leave Application. As the applicant had appealed/petitioned against the Director’s Decision to the Board, and for reasons to be discussed in the ensuing paragraphs, this court considers it right to treat the Leave Application as against the Board’s Decision as well.

7.Thus, on this court’s own motion, the decisions in respect of which relief is sought are amended to “Director of Immigration’s decision dated 18 July 2024 and Torture Claims Appeal Board’s decision dated 6 November 2024”.

8.In Form 86, the applicant named the Board as the 1^st putative respondent and the putative interested party, but spelt the Board’s name wrong. In fact, the Director, apart from being named as the 2^nd putative respondent, should be named as the putative interested party as well.

9.This court therefore makes an order on its own motion to amend the name of the 1^st putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

The applicant’s case

10.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.

11.The applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed or killed by her stepbrother due to a dispute regarding the inheritance of the family house.

Withdrawal of the Leave Application

12.Before the Leave Application was dealt with, the applicant filed an ex parte application on 28 September 2026 by way of her affirmation dated 29 [sic] September 2026 to cancel the Leave Application. However, the applicant did not indicate that it was safe for her to return to her country, nor her problems in her home country had been resolved.

13.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.

14.However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

15.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

16.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).

17.However, the applicant did not advance any grounds for judicial review in Form 86, nor in her supporting affirmation dated 27 November 2024. She merely mentioned in the said affirmation that it was her affirmation for leave to apply for judicial review against the Director’s Decision.

Discussion

18.First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision. There are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). Thus, the applicant’s application for leave to apply for judicial review against the Director’s Decision is dismissed.

19.This court will proceed to deal with the applicant’s application for leave to apply for judicial review against the Board’s Decision.

20.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).

21.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.

22.In assessing the applicant’s appeal/petition, the Board arranged an oral hearing on 21 October 2024 and the applicant was present. Thus, the applicant did have the opportunity to present her case to the Board in person.

23.The Board had laid out its assessment of the applicant’s claims against all the applicable grounds under the USM in paragraphs 42 to 59 of the Board’s Decision, and it is not necessary to repeat the same here.

24.In gist, the Board found that the applicant’s dispute with her stepbrother over the inheritance of a family house was only a domestic dispute which did not involve the state or was related to any of the Convention reasons. The applicant had only been attacked by her stepbrother once and her injuries were not serious at all. The applicant never thought of seeking assistance from the police in Indonesia. The Board found nothing in the evidence to suggest that the applicant’s stepbrother had any serious intention to harm or kill her. The threats issued were just verbal utterances to pressurize the applicant not to fight for the house.

25.With regards to the applicant’s assertion that she did not seek assistance from the police as she believed that the police would not help, the Board found that although incompetence and ineffectiveness of the police was to a certain extent supported by objective country of origin information (“COI”), there was also information that the Indonesian government did take measures to improve the Indonesian police in terms of efficiency and concern for human rights.

26.Moreover, the Board had given full reasons in paragraphs 60 to 64 of the Board’s Decision for its conclusion that internal relocation was a viable option to the applicant to avoid her stepbrother if she was to return to Indonesia.

27.Thus, the Board found that the applicant had not established any substantial grounds to claim for non-refoulement protection under the USM.

28.The finding of facts, including the assessment of evidence, COI 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.

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 application to withdraw the Leave Application is refused and the Leave Application in respect of both the Director’s Decision and the Board’s Decision is dismissed.

Dated the 14^th day of October 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 his 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: 14/10/2026 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: 14/10/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office 1^st putative respondent’s ref. no.: USM 24192 Director of Immigration 2^nd putative respondent and putative interested party’s ref. no.: QA T/C 1603/24 (formerly RBCZ 5001347/24) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)