Case Document

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HCAL 1931/2023

[2026] HKCFI 5915

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1931 OF 2023

BETWEEN

	Indah Anggraini Putri	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 the applicant being absent in open court;

Order by Deputy High Court Judge Michael WONG:

1. 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 28 September 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/HCAL001931_2023_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 20 September 2021 (“the Director’s Decision”) failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.

The applicant’s case

3.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.

4.In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed or killed by Ariyanto, her separated husband who had forced her to work as a foreign domestic helper and to send him her wages. Ariyanto had used violence on her when she was in Indonesia. Ariyanto would kill her because she had converted from Islam to Catholicism.

5.The applicant also claimed that she would be harmed or killed by Saropah, who was a moneylender, due to the applicant’s inability to repay the debt owed to him.

6.Moreover, the applicant claimed that her neighbours and relatives in Jambi and Jumber would persecute her because of her conversion from Islam to Catholicism.

Oral hearing

7.The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 15 October 2026.

8.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.

9.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

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 judicial review in Form 86. In her supporting affirmation dated 26 October 2023, the applicant stated that she did not agree with the Board.

12.In the document with the title “GROUNDS” that was annexed to her supporting affirmation, the applicant mentioned a few matters, which are summarised as follows:-

(1)  The Board did not truly consider her claim;

(2)  She was given a lawyer at the screening interview, but the lawyer did not help her at all. The applicant only talked to the interpreter, and when the interpreter was writing down her statement, her lawyer was sleeping;

(3)  The Board dismissed her claim but showed some bad arguments. The Board was prepared to dismiss her claim before the oral hearing;

(4)  The adjudicator should be one kind of a judge, but the adjudicator assessing her case was not neutral, so he did not find any reason to grant leave to the applicant; and

(5)  The applicant’s life was not totally safe in her country. Despite that she had told the Board all her story and submitted all documents, but there was no good result.

13.As aforesaid, the applicant was absent at the oral hearing before this court. Thus, no elaboration on the aforesaid grounds could be obtained from the applicant at the scheduled hearing.

Discussion

14.First of all, the applicant’s comment in her supporting affirmation that she did not agree with the Board’s Decision cannot help her. She did not say why she did not agree with the Board’s Decision, how the Board’s Decision was wrong or how the Board erred in its assessment of her non-refoulement claim and/or her appeal/petition.

15.In ground (1) of the applicant’s document as summarised above, the applicant complained that the Board did not truly consider her claim. However, this ground was advanced without any particulars. The applicant did not state how the Board had failed to truly consider her claim, or how her claim ought to be considered.

16.Contrary to the applicant’s assertion, this court notes that the Board had thoroughly and carefully considered all aspects of her claim, including her fear of her separated husband due to the past violence and her conversion from Islam to Catholicism, her fear of her creditor arising from the non-repayment of loan and her fear of her neighbours and relatives due to her change of religion.

17.The applicant complained in ground (2) about the lawyer assigned to assist her at the screening interview. However, there was nothing before this court to support the applicant’s allegation in this respect. In any event, if she found that the lawyer was not assisting her at all or was even sleeping when her statement was being recorded, she should have raised this complaint to the interviewing officer, who should be present at the material time. She could and should also have complained against the lawyer to the Duty Lawyer Service.

18.More importantly, the applicant failed to indicate how she had been prejudiced as a result of the attitude of the lawyer. Thus, ground (2) has no substance.

19.In ground (3) as summarised above, the applicant asserted that the Board had showed some bad arguments when dismissing her claim, and was prepared to dismiss her claim even before the Board’s hearing. Again, this ground was advanced without any specificity. The applicant did not state what “bad arguments” the Board had given, or why she believed that the Board was prepared to dismiss her claim even before the Board’s hearing.

20.As can be seen from the Board’s Decision, there is simply no reason to believe that the Board was prepared to dismiss the applicant’s claim even before the Board’s hearing. The Board had asked extensive questions of the applicant at the Board’s hearing to try to understand all aspects of her claim, and discussed the availability of state protection to her and the viability of internal relocation for her.

21.In ground (4), the applicant complained that the adjudicator assessing her case was not neutral, and he did not find any reason to grant leave to the applicant. The applicant did not specify what the adjudicator had done to show that he was not neutral. The mere fact that the Board found the applicant’s appeal/petition failed on all the applicable grounds under the USM cannot in itself be interpreted as the Board not being neutral in its assessment of the applicant’s case.

22.Finally, the applicant stated that her life was not totally safe in her country in ground (5). However, all her dangers in her home country had been duly assessed but rejected by the Board after careful examination of her case. 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.

23.Thus, this court finds that none of the matters asserted by the applicant in her affirmation and the document with the title “GROUNDS” constitutes a valid ground to challenge the Board’s Decision.

24.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).

25.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.

26.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 19 July 2023 and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person.

27.As can be seen from the Board’s Decision, the Board had duly considered all aspects of the applicant’s claims and all the documents she submitted in relation to her non-refoulement claim. The Board’s findings on the applicant’s claim and evidence, and its reasons for concluding that the applicant’s appeal/petition against the Director’s Decision failed on all the applicable grounds, were laid out in paragraphs 140 to 185 of the Board’s Decision.

28.In gist, the Board found that the applicant was unable to recall correctly major events that affected her life and family. The applicant had failed to explain why her education and experiences would have made her unable to do so. The applicant had not explained why she had omitted to mention events in her Non-refoulement Claim Form and Screening Interview; whilst she could remember at the time of testimony. The Board found that the crucial aspects of her core claims were contradictory. Her testimony was a manifestation of inconsistencies, inventions and implausibility.

29.The overall impact of the problems in the applicant’s claims and testimony had led the Board to find that she was not a credible witness, and the Board rejected her core account. After due consideration of all the factors, the Board concluded that there were serious credibility problems such that the Board was unwilling to attach any credence regarding her information leading to her claimed risks that were summarised in paragraph 165 of the Board’s Decision. The Board found that the applicant did not face a real risk of torture, ill-treatment, arbitrary deprivation of life or persecution upon her refoulement.

30.This court finds that the reasons given by the Board for the finding as summarised above fully justified.

31.The Board had conducted very extensive research on country of origin information (“COI”) of Indonesia in its assessment of the availability of state protection to the applicant (see paragraphs 222 to 248 of the Board’s Decision). In gist, the Board found that effective criminal law provisions were put in place in Indonesia to protect its citizens. Even if the applicant’s alleged harms, or threats of death or harms had some credence, the information provided by the applicant did not show that the government of Indonesia was unwilling and/or unable to provide effective protection. The applicant had not reasonably exhausted all avenues of state protection open to her. There was no clear and convincing information to demonstrate that the alleged harms, or threats of death or harms, were knowingly tolerated by the authorities, or that the government of Indonesia refused, or was unable, to offer effective protection to the applicant.

32.Despite its findings as summarised above, the Board had also given due consideration as to the viability of internal relocation for the applicant. The Board had given full and justified reasons in paragraphs 250 to 251 for its conclusion that the applicant could reasonably live without fear of the alleged harms and undue hardship, if she relocated to Surabaya, Jakarta and Semarang upon her return to Indonesia.

33.Thus, the Board concluded that the applicant’s claim for non-refoulement protection and her appeal/petition against the Director’s Decision failed on all the applicable grounds under the USM.

34.The finding of facts in relation to the applicant’s case, including the assessment of evidence, COI and risk of harm, was primarily within the realm of the Board. 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.

35.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.

36.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

37.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 18837 Director of Immigration Putative interested party’s ref. no.: QA T/C 1002/21(Formerly RBCZ 11051/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)