Case Document

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HCAL 1926/2023

[2026] HKCFI 5871

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1926 OF 2023

BETWEEN

	Amalia	Applicant
	and
	Torture Claims Appeal Board	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 in open court;

Order by Deputy High Court Judge Michael WONG:

1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

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

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 26 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 13 October 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001926_2023_files/the_Board's_Decision.pdf

2.The Board found that the applicant was unable to make out her claims for non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 25 August 2022 and confirmed the same, which rejected her non-refoulement claim.

Amendments

3.The applicant named the Board and “Non-Refoulement claims Petition Office” as the putative respondents and “Torture Claims Appeal Appeal Board Non-Refoulement claims Petition Office” as the putative interested parties in Form 86, when only the Board should be the putative respondent, and the Director should be the putative interested party.

4.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.

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.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.

7.In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed or killed by a loan shark Hariyanto, who was her friend’s husband, due to the applicant’s inability to repay a loan in the amount of 300 million rupiah. The applicant claimed that the loan was obtained in order to pay for the hospitalization and surgery of her sister who was injured in a car accident in 2018.

Oral hearing

8.The applicant requested for an oral hearing of the Leave Application and her case was heard on 15 October 2026.

9.When this court asked the applicant for the grounds of her intended judicial review, the applicant replied that she was married to a Hong Kong resident and was waiting for her dependent visa. She confirmed that there was no ground for her intended judicial review.

Grounds for judicial review

10.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).

11.The applicant did not advance any grounds for the intended judicial review in Form 86, nor in her supporting affirmation dated 26 October 2023.

12.As aforesaid, the applicant only said at the oral hearing before this court that she was married to a Hong Kong resident and was waiting for her dependent visa, and she had no grounds for the judicial review against the Board’s Decision.

Discussion

13.First of all, the fact that the applicant is married in Hong Kong to a Hong Kong resident is simply irrelevant to the Leave Application.

14.As held by the Court of Final Appeal in Comilang & Ors v Director of Immigration [2019] HKCFA 10, family unity rights were not a bar to refoulement of foreign nationals without a right of abode, even when they have a spouse and children who are permanent residents of Hong Kong. Thus, separation with her husband was not a basis on which the applicant could establish her non-refoulement claim.

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/petition by the applicant, the Board held an oral hearing on 25 May 2023. The applicant was present and hence she was given the chance to present her case to the Board in person.

18.As can be seen from the Board’s Decision, the Board had assessed all the applicant’s claimed risk. The Board’s analysis and consideration of the applicant’s evidence, and its conclusion based on its findings, were laid out in paragraphs 32 to 48 and 49 to 61 of the Board’s Decision respectively.

19.In gist, the applicant could not provide any documentary proof of the existence of the loan. The Board considered that the applicant’s claim about her loan, which formed the factual basis of her claim for non-refoulement protection, could and should have been supported by medical records of her sister. The applicant was provided with the opportunity to provide the said records. Despite the Board’s letter to her before the Board’s hearing and the extension of 30 days given by the Board at the Board’s hearing, the applicant did not provide such documents.

20.Moreover, the Board considered it unlikely to the extreme that the applicant would be able to obtain a huge loan of 300 million rupiah, which was stated to be unsecured, when she was not earning money or was earning minimal amounts, and came from a poor family.

21.The Board thus concluded that the applicant had not established that she obtained a loan in the amount claimed and in the circumstances claimed, and that the claim was not credible.

22.Furthermore, for the sake of completeness, the Board had given full reasons in paragraphs 62 to 71 of the Board’s Decision for its conclusion that even if the applicant had incurred some form of indebtedness which was not paid off due to the premature termination of her employment contract in Hong Kong, she would be able to relocate in Indonesia without any real risk of being traced by a local moneylender.

23.Thus, the Board concluded that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the USM.

24.The finding of facts relating to a non-refoulement claim, including the assessment of evidence, country of origin information and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

25.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.

26.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

27.For reasons aforesaid, the Leave Application is dismissed.

Dated the 21^st 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: 21/10/2026 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: 21/10/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 20911 Director of Immigration Putative interested party’s ref. no.: QA T/C 717/22 (formerly RBCZ 5000585/22) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)