Sri Yuliasih v. Torture Claims Appeal Board
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HCAL 1913/2023 [2026] HKCFI 5870 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1913 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 24 October 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 22 September 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant’s application for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 21 December 2022 and confirmed the same, which rejected the applicant’s non-refoulement claim. Amendments 3.In Form 86, the applicant named the Board and “non-refulement Claims Petition office” as both the putative respondents and the putative interested parties. 4.In fact, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party. 5.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative party at all. 6.Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”. The applicant’s case 7.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. 8.In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed or killed by YUSUP, the creditor of the applicant’s late mother. The applicant claimed that her late mother borrowed 40 million Indonesian rupiah from YUSUP but was unable to repay the debt. Three months after the applicant’s father’s death in 2021, YUSUP threatened the applicant’s mother that if she could not repay the debt, the applicant would have to marry him, and if the applicant refused, the applicant would be killed upon her return to Indonesia. Oral hearing 9.The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 15 October 2026. 10.As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits. 11.Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court. Grounds for judicial review 12.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). 13.The applicant did not identify any grounds for the intended judicial review in Form 86. She merely stated in her supporting affirmation dated 24 October 2023 that she could not go back to Indonesia because her life was in danger as her loan sharks would kill her, and she could not pay the debt as she did not have money to pay the debt. Discussion 14.First of all, the applicant’s danger in her home country had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review unless there were errors of law, procedural unfairness or irrationality in the Board’s Decision. 15.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). 16.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. 17.In assessing the appeal by the applicant, the Board arranged an oral hearing on 25 July 2023 and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person. 18.As can be seen from the Board’s Decision, the Board accepted the basic facts of the applicant’s case, namely that her mother obtained a loan from a moneylender, she was not able to repay the loan, and the moneylender made verbal threats to kill the applicant. Moreover, the Board accepted that the applicant had no news of the moneylender after her mother’s death in October 2022. 19.However, the Board found that despite her mother’s failure to repay the moneylender before she died, the moneylender had never harmed her mother or anyone in the family. The applicant had never had any direct contact with the moneylender. The applicant in fact agreed at the Board’s hearing that the moneylender should only want the money back, and the moneylender might not have a real intention to harm or kill her. 20.In its assessment of the applicant’s claim against all the applicable grounds under the USM, the Board found that the applicant’s dispute with her mother’s creditor was only a private and financial dispute that had nothing to do with the state or any of the Convention reasons. The Board did not accept that the ill-treatment the applicant suffered had attained a minimum level of severity that required international protection. 21.The applicant’s evidence was that she had never seen the moneylender and had no background information in relation to him. In fact, the moneylender had never contacted her or seen her before, and had never threatened her directly. The applicant suffered no injury, both mental and physical, at all. There was also no evidence to show state acquiescence in the moneylender’s threat towards the applicant. 22.Moreover, the Board found from reliable country of origin information (“COI”) that despite shortfalls, the Indonesian government had already tried their best to combat corruption and improve police professionalism. The Board found that reasonable state protection was available to the applicant. 23.Despite its findings as summarised above, the Board further stated in paragraphs 109 to 110 that it had considered viability of internal relocation for the applicant, and was of the view that given the applicant’s profile, she could reasonably live in bigger cities like Jakarta and Surabaya. 24.Thus, the Board found that the applicant faced no genuine risk of any of the proscribed forms of harm under the USM if she were refouled to Indonesia. 25.The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion. 26.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. 27.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 28.For reasons aforesaid, the Leave Application is dismissed. Dated the 21st 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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